Lewis v. Dr. Mark et al

Filing 30

MEMORANDUM AND OPINION denying 1 Petition. The Clerk of Court shall enter judgment in favor of respondent. Signed by Magistrate Judge Clifford J. Proud on 2/8/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
)
)
)
)
)
)

BRIAN R. LEWIS,
Petitioner,
vs.

WARDEN of MARION,
Respondent.

Civil No. 17-cv-1029-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
This matter is now before the Court on Brian R. Lewis’ petition for habeas
relief pursuant to 28 U.S.C. § 2241, Doc.1.
Petitioner Brian R. Lewis is an inmate in the BOP, now assigned to Marion
USP. His current projected release date is September 12, 2018, via good conduct
credit. Doc. 21, Ex. 1, p. 7. 2 The petition alleges that Lewis was approved for
twelve months of placement in a residential reentry center (“RRC”) while he was
assigned to FCI Elkton.

He was then transferred to FCI Pekin, where that

approval “was taken without due process.” As will be seen, that is not an accurate
description of what happened.
The Second Chance Act, 18 U.S.C. § 3624(c), provides:
The Director of the Bureau of Prisons shall, to the extent practicable,
ensure that a prisoner serving a term of imprisonment spends a portion of
the final months of that term (not to exceed 12 months), under conditions
that will afford that prisoner a reasonable opportunity to adjust to and
prepare for the reentry of that prisoner into the community. Such
1

This case was assigned to the undersigned for final disposition upon consent of the parties pursuant to 28 U.S.C.
§636(c). See, Doc. 25.
2
The Court uses the document, exhibit and page numbers assigned by the CM/ECF system.

1

conditions may include a community correctional facility.
This Court seriously doubts whether a habeas petition under § 2241 is the
correct vehicle for bringing a claim alleging entitlement to RRC placement under §
3624(c).

A petition for a writ of habeas corpus is the proper route “[i]f the

prisoner is seeking what can fairly be described as a quantum change in the level
of custody-whether outright freedom, or freedom subject to the limited reporting
and financial constraints of bond or parole or probation.” Graham v. Broglin,
922 F.2d 379, 381 (7th Cir. 1991).

If, however, the prisoner “is seeking a

different program or location or environment, then he is challenging the
conditions rather than the fact of confinement and his remedy is under civil rights
law.” Id. Regardless, as suggested in Graham, the Court will address the merits
of petitioner’s claim. Id.
Petitioner’s case was allowed to proceed beyond the preliminary review
stage based on his allegation that his approval for twelve months placement in a
residential reentry center was revoked without due process.

However, the

declaration and documents attached to the response, Doc. 21, make it clear that
Lewis was not, in fact, approved for twelve months placement in a residential
reentry center.
The declaration of Steven Thomas, who is employed by the BOP as a
Residential Reentry Specialist, establishes that a Unit Team at an inmate’s
institution

makes

a

recommendation

regarding

RRC

placement.

The

recommendation is then considered by the Residential Reentry Manager’s office; it

2

is the Residential Reentry Manager’s office which makes the decision about RRC
placement. Here, petitioner’s Unit Team at FCI Elkton recommended 360 days of
RRC placement. However, that recommendation was not followed. Rather, the
Residential Reentry Manager’s office determined that 180 days was appropriate,
which would mean placement in an RRC as of March 1, 2018. Doc. 21, Ex. 1, pp.
1-3.
Lewis was transferred from Elkton to Pekin to participate in a residential
drug abuse treatment program (“RDAP”). A component of the RDAP program is
completed in the community, referred to as the “Community Transitional Drug
Abuse Treatment Program.” Staff at Pekin requested that Lewis’ RRC placement
date be moved up from March 2018 to December 2017 so that he would have
enough time to complete the community-based drug abuse treatment program
while residing in an RRC. The Residential Reentry Manager’s office complied with
this request.

However, Lewis was expelled from the RDAP program for

noncompliance, which negated the reason for the December 2017 placement date.
He was then transferred to Marion. Doc. 21, Ex. 1, pp. 3-4.
Because the prior recommendation for RRC placement had been premised
on petitioner’s successful completion of the RDAP program, the Residential
Reentry Manager’s office requested a new recommendation regarding RRC
placement.

The Unit Team at Marion recommended a placement date of

December 5, 2017.

That recommendation was considered and rejected.

The

Residential Reentry Manager’s office determined that 179 days was appropriate,

3

resulting in a placement date of March 5, 2018. 3 Doc. 21, Ex. 1, pp. 4-6.
Based on the foregoing facts, it is clear that the initial premise of the
petition was incorrect.

Lewis was not approved for twelve months of RRC

placement while he was assigned to Pekin.

Rather, the Unit Team at Pekin

recommended twelve months, but he was approved for 180 days.
By its terms, § 3624(c) does not give an inmate a legally-enforceable right to
placement in an RRC at all, and it certainly does not confer a right to a specific
period of time in an RRC. It is unnecessary to decide whether an inmate acquires
a right not to have an approved RRC placement changed without some level of due
process because that is clearly not what happened here. Rather, the Pekin Unit
Team’s recommendation for twelve months was not approved.
Brian R. Lewis’ petition for habeas relief pursuant to 28 U.S.C. § 2241,
Doc.1, is DENIED.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
DATE: February 8, 2018.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

3

As things stand now, Lewis will serve a few more days in an RRC because 15 days of good conduct time have
been revoked, but his RRC placement date remains March 5, 2018.

4

Notice
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within sixty days of the entry of judgment. Fed. R. App.
P. 4(a)(1)(B). A motion for leave to appeal in forma pauperis should set forth the
issues petitioner plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the 60-day appeal deadline. Other
motions, including a Rule 60 motion for relief from a final judgment, order, or
proceeding, do not toll the deadline for an appeal.
It is not necessary for petitioner to obtain a certificate of appealability from
this disposition of his §2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
Cir. 2000).

5