Dhafir v. Federal Bureau of Prision et al
Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER(PSSA, 5)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
WARDEN JEFFREY GRONDOLSKY,
FEDERAL BUREAU OF PRISONS,
DIRECTOR OF THE FEDERAL
BUREAU OF PRISONS, AND LORETTA
MEMORANDUM AND ORDER
On December 12, 2016, petitioner Rafil Dhafir, a prisoner incarcerated at FMC Devens in
Ayer, Massachusetts, filed a petition for mandamus or alternatively a petition for a writ of habeas
corpus under 28 U.S.C. § 2241 with an incorporated memorandum in support. Dhafir claims that
respondent has improperly determined that he is ineligible for compassionate release under 18
U.S.C § 3582(c). For the reasons stated below, the petition for habeas corpus pursuant to 28
U.S.C. § 2241 is hereby DENIED and this action is hereby DISMISSED.
The Federal Bureau of Prisons (“BOP”) maintains eligibility qualification criteria for
Reduction in Sentence (“RIS”) requests by inmates for implementation of 18 U.S.C.
§ 3582(c)(1)(A). See Bureau of Prisons Program Statement 5050.49, Compassionate
Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c)(1)(A)
and 4205(g) (March 25, 2015). Pursuant to PS 5050.49(4)(c), one criteria for RIS eligibility
relates to elderly inmates as follows:
c. Other Elderly Inmates. Inmates age 65 or older who have served
the greater of 10 years or 75% of the term of imprisonment to which
the inmate was sentenced.
PS 5050.49(4)(c). On April 30, 2016, Dhafir filed an internal grievance at FMC-Devens,
requesting that BOP file an RIS motion because he believed that he qualified because of his age
and having served more than ten years of his 22-year sentence. [ECF No. 1-1 at 1–2]. Dhafir
argued that the 75% requirement was applicable to inmates who have less than a ten year
On May 16, 2016, FMC Devens’ Unit Manager denied Dhafir’s grievance responding:
You state that you meet the criteria for a RIS because you have
served over 13 years of your prison sentence, which is greater than
the stated 10 years which are required. However, this does not
completely satisfy the requirement because it states that you must
be over the age of 65 and having served the greater of 10 years or
75% of your sentence. You have not yet served 75% of your
sentence so you do not qualify at this time for RIS.”
[ECF No. 1-1 at 2 (emphasis in original)].
On May 18, 2016, Dhafir filed a Request for Administrative remedy appealing the Unit
Manager’s decision to FMC Devens’ Warden Jeffrey Grondolsky. [ECF No. 1-1 at 3]. Dhafir
argued, again, that the 75% requirement was applicable to inmates who were serving a sentence
of less than ten years. Id. On June 16, 2016, Warden Grondolsky denied the appeal, concurring
with the Unit Manager’s assessment of Dhafir’s ineligibility. Id. Specifically, the Warden stated
that Dhafir had failed to make a proper request, but that he did not meet the criteria for a
reduction in sentence because he had not served the greater of 10 years or 75% of his sentence.
On October 11, 2016, Dhafir’s further appeal of the denial of his RIS request was denied.
Consistent with the Warden and Unit Manager, BOP’s National Inmate Appeals Administrator
Title 18 of the United States Code, §3582(c)(1)(A), allows a
sentencing court, on motion of the Director of BOP, to reduce a term
of imprisonment for extraordinary and compelling reasons.
Pursuant to Program Statement No. 5050.49., Compassionate
Release/Reduction in Sentence: Procedures for Implementation of
18 U.S.C. §§ 3582(c)(1)(A)…consideration for a RIS may be given
to an inmate who is age 65 or older and who has served the greater
of 10 years or 75 percent of the term of imprisonment to which he
was sentenced….[Y]ou were sentenced to a 264 month (22 years)
sentence by the U.S. District Court, Northern District of New York.
Your projected Good Conduct Time release date is April 26, 2022.
You are 68 years old and have served over 13 years and seven
months (61%) of your sentence. In your case, the greater of 10 years
or 75% of your sentence is 75% of your sentence. You have not
served 75% of your sentence. Accordingly, your appeal is denied.
[ECF No. 1-1 at 5]. Dissatisfied with the results, petitioner brought the instant action.
Pursuant to 28 U.S.C. § 2243, a writ of habeas corpus must be “directed to the person
having custody of the person detained.” It is well-settled that a prisoner contesting the legality of
his detention normally must name his immediate custodian, “the individual having day to day
control over the facility in which he is being detained” as the respondent to the petition. See
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). The Court will therefore dismiss the claims
against all respondents, except Warden Jeffrey Grondolsky, on the grounds that they are
improper parties to a 28 U.S.C. § 2241 proceeding. The Court dismisses the claims against
Grondolsky for the following reasons.
Dhafir is seeking review of BOP’s decision not to seek a reduction in sentence under 18
U.S.C. §3582(c)(1)(A). The courts in this district have entertained 28 U.S.C. §2241 petitions on
this issue before, but there remains an open jurisdictional question as to whether the Court can
review BOP’s decision not to seek an RIS motion under §3582(c)(1)(A).1 “[A]lthough the First
Circuit has not ruled on this issue, other circuits have uniformly held that the BOP’s decision to
deny compassionate release is not subject to judicial review.” Webb v. Grondolsky, No. CIV.A.
12-40114-RWZ, 2013 WL 1003452, at *1 (D. Mass. Mar. 14, 2013) (unpublished decision,
citations omitted) (dismissing § 2241 habeas corpus petition); see also Leja v. Sabol, 487 F.Supp.
2d 1 (D. Mass. 2007) (dismissing § 2241 petition).2
Assuming without finding that the Court could review BOP’s decision, as a threshold
issue, Dhafir’s interpretation of the RIS eligibility standard is facially incorrect. That is, Dhafir
does not appear to be eligible under the RIS criteria cited, which is potentially available to
inmates “65 years or older and have served the greater of 10 years or 75% of the term of their
imprisonment to which the inmate was sentenced.” PS 5050.49(4)(c) (emphasis supplied). The
The Court has proceeded with this petition under 28 U.S.C. §2241, although the plaintiff does
argue mandamus in the alternative. To the extent that plaintiff seeks to proceed in a mandamus
action under 28 U.S.C. § 1361, or otherwise, he would need to refile his complaint as a non
habeas civil action, which is subject to the Prison Litigation Reform Act, 42 U.S.C. § 1997e, and,
potentially, might qualify as an action commonly referred to as a “strike” under 28 U.S.C. §
1915(g) if the action is dismissed for grounds enumerated therein. He would also be required to
pay the $400 filing fee or seek in forma pauperis status for a waiver of prepayment of the fee.
The First Circuit has stated in an unpublished decision that “[w]hether the BOP’s refusal to so
move [under 18 U.S.C. § 3582] is reviewable by the courts is an open question, but one we need
not address. Even assuming there is some form of judicial review, the record…does not establish
arbitrary or capricious action by the BOP…On the present record, the Petitioner has not
established the BOP’s stated concern is so irrational and groundless that this Court should negate
it.” Morales v. United States, No. 05-1191, Slip Op. 2 (1st Cir. Nov. 28, 2005).
plain, unambiguous interpretation is that Dhafir has to serve the greater of two options: (a) 10
years or (b) 75% of the sentence imposed. Dhafir’s interpretation of the criteria would
impermissibly require the Court to ignore the phrase “greater of.” See Petrie v. Schultz, No.
CIV.A. 09-6291 RBK, 2011 WL 9444, at *1 (D.N.J. Jan. 3, 2011) (rejecting same interpretation
made by Dhafir but in regard 42 U.S.C. § 17541(g)(5)(A)(i)-(iii), because it “omits to recognize
that the phrase ‘the greater of’ serves as an express modifier of the following conjunction ‘or.’”).
Accordingly, this Court either has no jurisdiction to review BOP’s decision because it is
not subject to judicial review, or if it does, on this record as alleged by Dhafir, the Court cannot
conclude that BOP acted in an arbitrary or capricious manner. Therefore, “it appears from the
application that the applicant or person detained is not entitled” to a writ. 28 U.S.C. § 2243.
Conclusion and Order
Based on the above, it is hereby ordered that the 28 U.S.C § 2241 Petition is DENIED
and the action is DISMISSED as to Warden Jeffrey Grondolsky. The action is DISMISSED as to
the remaining respondents as improper parties under 28 U.S.C. §2243. This dismissal is without
prejudice to petitioner filing a separate civil action.
Dated: February 7, 2017
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE
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