Mathis v. Salazar

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 3/24/2017 GRANTING petitioner's 5 motion to proceed IFP. Petitioner's petition for writ of habeas corpus is DENIED without leave to amend, on the ground that it fails to state a cognizable claim. Petitioner's 6 motion for preliminary injunctive relief is DENIED as moot. The Clerk shall close this case. CASE CLOSED.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID L. MATHIS,

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Petitioner,

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No. 2:17-cv-00052 AC P

v.

ORDER

J. SALAZAR, Warden,

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Respondent.

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I.

Introduction

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus

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filed pursuant to 28 U.S.C. § 2241, and a request to proceed in forma pauperis; petitioner has also

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filed a motion for preliminary injunctive relief. Petitioner has consented to the jurisdiction of the

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undersigned United States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c), and

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Local Rule 305(a). See ECF No. 8.

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For the reasons that follow, the petition is denied without leave to amend for failure to

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state a cognizable claim, and petitioner’s motion for preliminary injunctive relief is denied as

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moot.

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II.

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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In Forma Pauperis Application

the costs of suit. Accordingly, petitioner’s request for leave to proceed in forma pauperis will be
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granted. See 28 U.S.C. § 1915(a).

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III.

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A federal prisoner challenging the manner, location, or conditions of the execution of his

Standard of Review

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or her sentence, on federal constitutional, statutory or treaty grounds, must bring a petition for

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writ of habeas corpus under 28 U.S.C. § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864

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(9th Cir. 2000) (per curiam). A district court must award a writ of habeas corpus or issue an order

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to show cause why the writ should not be granted unless it clearly appears from the petition that

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the applicant is not entitled to relief. See 28 U.S.C. § 2243.

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IV.

Petitioner’s Allegations, Claims and Request Relief

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Petitioner makes the following allegations. See ECF No. 1 at 1-3. Petitioner was

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transferred to the Federal Correctional Institution (FCI) in Herlong on December 27, 2012. On

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January 7, 2013, FCI Herlong instituted a “two-hour watch program,” which requires that

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selected inmates verify their location to officials every two hours. On the same date, petitioner

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and two other FCI Herlong inmates were placed in the program.

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From March 2013 to June 2016, petitioner sought unsuccessfully to obtain a copy of the

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program statement or underlying regulation, neither of which was posted for inmate review, either

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at the law library or on the prison’s electronic bulletin board. In July 2016, petitioner requested

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removal from the program, alleging a denial of equal protection. Petitioner’s request was denied

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at the informal “Unit Team” level, on the ground that the team did have authority to grant the

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requested relief. Next, the Warden informed petitioner that he “met the criteria for the

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institution[’s] two-hour watch program,” without addressing petitioner’s equal protection claim.

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The next response, from the Regional Director, informed petitioner that “all inmates” in FCI

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Herlong’s general population “with the past history of escape or attempted escape are currently in

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the 2-hour watch program,” without addressing plaintiff’s request for a program statement.

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Finally, the National Inmate Appeals Administrator denied petitioner’s appeal on December 6,

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2016, reiterating the assessment of the Regional Director that “all inmates” with a past history of

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escape or attempted escape were placed in the program; the Regional Director provided petitioner

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with a copy of “Program Statement 5510.13, Posted Picture File,” explaining that program
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procedures are developed “locally,” but did not address petitioner’s equal protection claim.

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Petitioner contends that the selection of inmates for inclusion in the two-hour watch

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program is arbitrary and therefore violates his rights to due process and equal protection. He

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alleges that the only official with direct access to all inmate files at CFI Herlong is the Warden,

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who opined only that petitioner met the criteria for inclusion in the program. Petitioner contends

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that the Regional Director’s statement that the program includes all inmates with a past history of

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escapes or attempted escapes is untrue. In support of this contention, petitioner identifies two FCI

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Herlong inmates with escape convictions who are not in the program, and one inmate who is in

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the program who does not have a history of escapes or attempted escapes. Petitioner explains that

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he presently “does not seek to be removed from the two-hour watch program” but “asserts that

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those who are similarly situated should be equally treated to inclusion in the program.” ECF No.

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1 at 4.

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Petitioner argues that the failure of FCI Herlong officials to post a comprehensive

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statement describing the criteria for inclusion in the program is also a violation of due process.

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He contends that the Federal Bureau of Prison’s (BOP) “Program Statement 5510.13, Posted

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Picture File,” given him by the National Administrator, does not identify the requirements for

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inclusion in the program but states only that the “[p]rocedures for two hour watch will be

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developed and negotiated locally.” See ECF No. 1 at 20 (Statement, § 3(k)). Petitioner seeks an

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order from this court declaring FCI Herlong’s two-hour watch program unconstitutional; or,

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alternatively, an order directing the FCI Herlong Warden to conspicuously post a statement

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describing the purpose, scope, and eligibility criteria for the program, as well as the procedures

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and documentation for assessing inmate eligibility for the program. See ECF No. 1.

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In his motion for preliminary injunctive relief, petitioner seeks an order directing the FCI

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Herlong Warden to “return the battery-operated clocks to the Food Service Department, the

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Health Services Department, and Commissary,” or to provide petitioner with a watch. Petitioner

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also seeks an order directing respondent “to place similarly situated inmates in the prison’s 2-hour

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watch program” and provide petitioner with “a copy of the written program statement for the 2-

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hour watch program.” See ECF No. 6. Petitioner complains that the removal of clocks in FCI
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Herlong makes it difficult for petitioner and other similarly situated inmates to timely report to

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officials. When petitioner complained to officials about the absence of clocks, he was told to

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purchase a watch which he asserts, with supporting documentation, would cost him $50.70.

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Petitioner contends that the prison should cover the costs for maintaining security at FCI Herlong.

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Petitioner relies on the elements for granting preliminary injunctive relief set forth in

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Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), to assert that he is

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likely to proceed on the merits of his habeas petition; he is likely to suffer irreparable harm in the

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absence of injunctive relief in the form of disciplinary action for failing to timely report to

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officials; the balance of equities tips in petitioner’s favor because the prison would incur no

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hardship by installing clocks and posting a full program statement; and compliance with these

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putative constitutional standards is in the public interest.

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Petitioner avers that he exhausted his administrative remedies. See 28 C.F.R. § 542.10 et

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seq. (Bureau of Prisons Administrative Remedy Program). Section 2241 does not expressly

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require petitioners to exhaust administrative remedies before filing a petition. Nevertheless, the

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Ninth Circuit Court of Appeals requires exhaustion “as a prudential matter.” Castro–Cortez v.

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INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v.

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Gonzales, 548 U.S. 30 (2006).

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V.

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Notwithstanding petitioner’s request to prison officials to be removed from the watch

The Petition

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program, petitioner concedes here that his past conduct renders him an escape risk and, on that

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basis, states that his inclusion in the program is appropriate. However, petitioner contends that

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the failure of prison officials to disclose and post the pertinent criteria for program inclusion

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constitutes a denial of due process. Petitioner further contends that, to the extent inclusion in the

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program is based on an inmate’s past escape attempts or risk of future escape attempts,

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application of this criteria is inconsistent, constituting a denial of due process and equal

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protection.

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A.

Due Process

State prisoners have no federally-protected liberty or due process interest in their

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classification status. See Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). “The

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same is true of prisoner classification . . . in the federal system. Congress has given federal prison

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officials full discretion to control these conditions of confinement, 18 U.S.C. § 4081, and

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petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due

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process.” Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). Section 4081 directs prisons to classify

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federal prisoners “according to the nature of the offenses committed, the character and mental

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condition of the prisoners, and such other factors as should be considered in providing an

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individualized system of discipline, care, and treatment[.]” “[I]t is well settled that prison

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officials must have broad discretion, free from judicial intervention, in classifying prisoners in

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terms of their custodial status.” McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir.1990)

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(citations and internal quotation marks omitted).

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The BOP’s “Program Statement 5510.13, Posted Picture File” accords prison officials

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wide discretion based on multiple factors in deciding whether to post pictures of inmates who are

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escape risks, present a threat to staff or institution security, or are otherwise potentially disruptive.

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See ECF No. 1 at 18. See e.g. United States v. Lecroy, 2012 WL 1114238, at *19, 2012 U.S.

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Dist. LEXIS 47030, at *57 (N.D. Ga. 2012), aff’d sub nom Lecroy v. United States, 739 F.3d

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1297 (11th Cir. 2014), cert. denied, 135 S. Ct. 1528 (2015) (“Inmates who are identified as

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escape risks receive special treatment in the BOP. They are included in a program called Posted

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Pictures, which alerts staff members about inmates who require extra attention and supervision.”).

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The authority delegated to each prison to “locally develop” its own watch program procedures is

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consistent with this discretion, and the discretion accorded generally to prison officials to

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determine each prisoner’s classification, housing and other custody matters.

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Courts previously tasked with addressing a due process challenge to BOP’s two-hour

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watch program have found the challenge noncognizable. See e.g. Hayat v. Garber, 2013 WL

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5913790, at *1, 2013 U.S. Dist. LEXIS 156959, at *1-3 (D. Ariz. Nov. 1, 2013) (petitioner’s

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claims, including a challenge to his inclusion in a “restrictive 2 hour watch program,” do not
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implicate due process rights or otherwise state a cognizable habeas claim); Barrenechea v.

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McGrew, 2013 WL 5933992, at *4-5, 2013 U.S. Dist. LEXIS 159244 (C.D. Cal. Oct. 31, 2013)

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(petitioner’s challenge to his “red card” classification, which rendered him subject to “a two-hour

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watch security monitoring procedure,” failed to state a cognizable habeas claim because

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“Congress has given the BOP broad discretion on determinations involving security classification

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and placement of inmates” (citing 18 U.S.C. §§ 3621(b), 4081), and “federal courts lack

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jurisdiction to review claims of BOP error in making individualized determinations under § 3621”

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(citing Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011)); Martinelli v. Morrow, 2010 WL

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5508637, at *3-4, 2010 U.S. Dist. LEXIS 138698, at *11-5 (N.D. Fla. Nov. 12, 2010) (collecting

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cases) (petitioner’s allegedly unsupported assignment to a watch program failed to state a due

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process claim because petitioner “failed to establish that he has a liberty interest in freedom from

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being on a two-hour watch”), report and recommendation adopted, 2011 WL 31115, 2011 U.S.

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Dist. LEXIS 763 (N.D. Fla. Jan. 5, 2011).

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These cases are correctly decided, and the same result is compelled here. The

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undersigned finds that petitioner’s challenge to his placement in FCI Herlong’s two-hour watch

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program fails to state a cognizable due process claim, because the decision to classify a prisoner

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as an enhanced security risk, precipitating additional precautions and inmate reporting

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requirements, is within the sound discretion of prison officials. The failure of prison officials to

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post and notify inmates of the prison’s “locally developed and negotiated” program requirements

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also fails to state a due process claim. Moreover, as a practical matter, the posting of such

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requirements would be futile because their implementation remains discretionary. See e.g.

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Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir. 2002), amended on denial of rehearing,

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337 F.3d 1023 (9th Cir. 2003) (Section 2241 is not available “to challenge purely discretionary

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(yet arguably unwise) decisions made by the executive branch that do not involve violations of

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the Constitution or federal law.”).

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B.

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Equal Protection

Petitioner’s equal protection challenge to his placement in the watch program also lacks
merit. “The equal protection clause forbids the establishment of laws which arbitrarily and
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unreasonably create dissimilar classifications of individuals when, looking to the purpose of those

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laws, such individuals are similarly situated. It also forbids unequal enforcement of valid laws,

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where such unequal enforcement is the product of improper motive.” Williams v. Field, 416 F.2d

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483, 486 (9th Cir. 1969) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). “[A] classification

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neither involving fundamental rights nor proceeding along suspect lines is accorded a strong

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presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if

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there is a rational relationship between the disparity of treatment and some legitimate

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governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993) (citations omitted).

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In the instant case, the categories described by petitioner do not implicate suspect

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classifications or fundamental rights, and are therefore subject to no more than rational basis

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scrutiny. Moreover, the essence of petitioner’s equal protection challenge is that assignment to

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the two-hour watch program does not conform to the category identified by the BOP Regional

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Director, which includes “all inmates with the past history of escape or attempted escape;” it is

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the alleged failure of prison officials to adhere to this classification that petitioner challenges, not

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the classification itself. Nevertheless, regardless of the criteria applied by FCI Herlong officials

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to assign prisoners to the subject program, “[a] habeas claim cannot be sustained based solely

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upon the BOP’s purported violation of its own program statement because noncompliance with a

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BOP program statement is not a violation of federal law. Program statements are ‘internal agency

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guidelines [that] may be altered by the [BOP] at will’ and that are not ‘subject to the rigors of the

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Administrative Procedure Act, including public notice and comment.’” Reeb, 636 F.3d at 1227

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(quoting Jacks v. Crabtree, 114 F.3d 983, 985 n.1 (9th Cir. 1997)). Accordingly, the undersigned

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finds that petitioner has failed to articulate a cognizable equal protection claim.

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C.

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Conclusion

For the foregoing reasons, this court finds that the instant § 2241 petition fails to state a

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cognizable claim, and that the deficiencies of the petition cannot be cured by amendment.

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Accordingly, the petition will be denied without leave to amend.

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VI.

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The denial of the instant petition renders petitioner unable to succeed on the merits of his

Motion for Preliminary Injunctive Relief

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claims and therefore on his motion for preliminary injunctive relief. See Winter, 555 U.S. at 20

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(party seeking preliminary injunction must establish, inter alia, that he is likely to succeed on the

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merits of his claims). More broadly, a district court may not issue preliminary injunctive relief

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without primary jurisdiction over the underlying cause of action. Sires v. State of Washington,

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314 F.2d 883, 884 (9th Cir. 1963) (affirming district court’s denial of petitioner’s motion for

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preliminary injunctive relief, filed separately from his petition under 28 U.S.C. § 2241).

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Accordingly, petitioner’s motion for preliminary injunctive relief will be denied as moot.

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VII.

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis, ECF No. 5, is granted.

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2. Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, ECF No.

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Conclusion

1, is denied without leave to amend, on the ground that it fails to state a cognizable claim.

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3. Petitioner’s motion for preliminary injunctive relief, ECF No. 6, is denied as moot.

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4. The Clerk of Court is directed to close this case.

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DATED: March 24, 2017

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