Dunlap v. Warden FMC Devens

Filing 38

Judge Richard G. Stearns: ORDER entered finding as moot 21 Motion to Dismiss for Failure to State a Claim; granting re 30 Motion to Dismiss for Failure to State a Claim; adopting report and recommendations re 36 Report and Recommendations; (Zierk, Marsha) Modified on 1/6/2025 to correct docket text (Martin, Jacqueline).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 24-11462-RGS
CORTNEY DUNLAP,
Petitioner
v.
WARDEN FMC DEVENS,
Respondent

ORDER ON REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
January 6, 2025
STEARNS, D.J.
I

agree

with

Magistrate

Judge

Levenson’s

thoughtful

(and

sympathetic) analysis of the substance of the petition and his ultimate
conclusion that the decision of the Bureau of Prisons (BOP) to deny
petitioner Earned Time Credits (ETCs) under the First Step Act (FSA) for the
time that he was detained in a non-BOP facility while awaiting a hearing on
a writ of habeas corpus in an unrelated matter, while arguably unfair, was
not unlawful. In enacting the FSA, Congress intended ETCs as an incentive
for inmates to participate in BOP-approved rehabilitation programs. As is
true with many legislative enactments of its type, Congress left certain

lacunae for the administering agency to fill.

As pertinent here, the FSA

leaves it to the BOP to implement rules for determining when an inmate is
“successful participating” in BOP-approved programming.

The pertinent

portion of the rule as promulgated excludes credit for an inmate’s
participation in programming while temporarily transferred to the custody
of another institution while being transported pursuant to a writ.

While

Magistrate Judge Levenson (or I) might have conceivably drafted a fairer
rule, as he aptly notes, we are “constrained to consider only whether the Rule,
or the BOP’s application of its Rule, contravenes the FSA or otherwise
violates Mr. Dunlap’s federal rights.”

R&R Dkt # 36, at 12.

As he

concludes, and I agree, it does not. Consequently, the Recommendation is
ADOPTED, and the Respondent’s motion to dismiss is GRANTED.1 The

Petitioner did file as “supplemental authority” an Alabama District
Court case, Sharma v. Peters, 2024 WL 4668135 (M.D. Ala. Nov. 4, 2024).
While the case is relevant (although not precedential), neither I nor the
Magistrate Judge feel that a different outcome is warranted in this case.
1

2

Clerk will now close the case. 2
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

Petitioner is advised that any request for the issuance of a Certificate
of Appealability pursuant to 28 U.S.C. § 2253 of the court’s Order granting
Respondent’s motion to dismiss is also DENIED, the court seeing no
meritorious or substantial basis supporting an appeal.
2

3