Pham v. Wagner et al

Filing 14

ORDER adopting Report and Recommendations re 11 Report and Recommendations. Further ordered that the petitioner's Petition pursuant to 28 U.S.C. sec. 2241 is DENIED. Final Judgment to follow. Signed by Honorable David C. Bramlette, III on 10/6/2016 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
THUAN MINH PHAM

PETITIONER

VS.

CIVIL ACTION NO. 5:14-cv-67(DCB)(MTP)

BARBARA WAGNER

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
This cause is before the Court on the petitioner Thuan Minh
Pham’s Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241
(docket entry 1).
Report

and

Magistrate Judge Michael T. Parker has made a

Recommendation

(docket

entry

11)

to

the

Court

recommending denial of the petition, and the plaintiff has filed
objections thereto (docket entry 12).
The

petitioner

Correctional

is

currently

Institution-Gilmer

incarcerated

in

Glenville,

at

the

West

Federal

Virginia.

However, at the time he filed his petition, he was incarcerated at
the

Federal

Correctional

Complex

in

Yazoo

City,

Mississippi.

Because jurisdictional facts must be judged as of the time the
complaint is filed, the Court maintains jurisdiction over the
petition despite petitioner’s transfer to FCI-Gilmer.

See Lee v.

Wetzel, 244 F.3d 370, 375 n.5 (5th Cir. 2001).
The Bureau of Prisons (“BOP”) uses a system of Public Safety
Factors as an aid to determine the level of security necessary for
a particular inmate in order to insure the public’s protection.
See BOP Program Statement 5100.08, Ch.5, pp.8-11. The BOP assigned

the petitioner a Public Safety Factor (“PSF”) of “Deportable
Alien.”

This PSF is assigned to inmates who are not citizens of

the United States.

See BOP Program Statement 5100.08, Ch.5, p.9.

The designation of “Deportable Alien” requires an inmate be housed
in an institution with a security level of no less than “Low.”
In his Petition, petitioner argues that he is a non-deportable
alien and, therefore, should not be subject to increased security
measures.

According to the petitioner, because he is a Vietnamese

citizen who arrived in the United States prior to July 12, 1995, he
is not subject to deportation.

He cites the 2008 repatriation

agreement between the United States and Vietnam, in which Vietnam
agreed to accept deportees who arrived in the United States on or
after July 12, 1995.

The petitioner argues that, by designating

him as a “Deportable Alien,” the BOP has wrongfully (1) prohibited
him from being placed in a minimum security prison, (2) prohibited
him

from

participating

in

a

residential

drug

abuse

program

(“RDAP”), (3) prohibited him from participating in a residential
reentry center (“RRC”), (4) prohibited him from being transferred
to a facility closer to his family, (5) prohibited him from being
reunited with his family at the earliest possible time, and (6)
prohibited him from participating in Federal Prison Industries.
The petitioner argues that applying the PSF of “Deportable Alien”
is in error and constitutes a violation of his constitutional
rights, specifically the rights afforded by the Due Process Clause.

2

In his Report and Recommendation, Magistrate Judge Parker
examines whether the petitioner has properly brought this action as
a habeas corpus petition.

When an action challenges the fact or

duration of an inmate’s confinement, it is a habeas corpus matter.
Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983).

On the other

hand, an inmate’s challenge to the conditions of confinement is
properly pursued as a civil rights challenge under Section 1983 or
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971).

See Cook v. Texas Dep’t of Criminal Justice

Transitional Planning Dep’t., 37 F.3d 166, 168 (5th Cir. 1994).
As the Fifth Circuit has explained, the distinction becomes
“blurry” when an inmate challenges an unconstitutional condition of
confinement or prison procedure that affects the timing of his
release from custody.

Carson v. Johnson, 112 F.3d 818, 820-21 (5th

Cir. 1997). Thus, the Fifth Circuit has “adopted a simple, brightline rule for resolving such questions.”

Id.

If a favorable determination of an inmate’s claims would not
automatically entitle the inmate to accelerated release, the proper
vehicle is a civil rights suit.

Id.

Because the petitioner is not

seeking immediate or early release from custody, and is instead
seeking to have his PSF of “Deportable Alien” removed so that he
will be eligible for programs that could reduce his sentence, he
has not alleged that a favorable determination would automatically
entitle him to a speedier release from custody.

3

Thus, the proper

vehicle for raising his claims would be a civil rights suit. Id;
see also, Boyce v. Ashcroft, 251 F.3d 911, 914 (10th Cir. 2001)
(“Prisoners who raise constitutional challenges to other prison
decisions – including transfers to administrative segregation,
exclusion from prison programs, or suspension of privileges, e.g.,
conditions of confinement, must proceed under section 1983 or
Bivens.”).
test

Because the petitioner does not meet the bright line

established

determination

by

will

the

Fifth

Circuit

automatically

entitle

(that
him

to

a

favorable
accelerated

release), the petitioner cannot pursue these claims in a Section
2241 petition.
Furthermore, to the extent the petitioner has presented civil
rights

claims,

he

has

not

asserted

a

violation

of

a

constitutionally-protected right entitling him to relief pursuant
to Bivens.

In order to succeed on a Bivens claim, a plaintiff must

show (1) that a constitutional right has been violated and (2) that
the conduct complained of was committed by a person acting under
color of Federal law.

Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th

Cir. 1985).
The petitioner argues that because he is not deportable, he
should have an opportunity to participate in certain programs and
receive certain benefits.

He also claims that the refusal to

remove his PSF of “Deportable Alien” constitutes a violation of his
rights afforded by the Due Process Clause.

4

Magistrate Judge Parker finds that the BOP’s decision to
classify petitioner as a “Deportable Alien,” despite the fact that
he will not be deported, does not give rise to a constitutional
claim. Although the petitioner claims that he has been deprived of
liberty without due process because the BOP refuses to remove his
PSF of “Deportable Alien” and transfer him to a facility where he
has the opportunity to participate in certain programs and receive
certain benefits, “[t]he fundamental requirement of due process is
the

opportunity

to

meaningful manner.”

be

heard

at

a

meaningful

time

and

in

a

Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(internal quotations omitted).

In determining whether there has

been a due process violation, courts consider (1) whether the party
was deprived of a liberty or property interest protected by the Due
Process Clause and, if so, (2) whether the party was deprived of
that protected interest without constitutionally adequate process.
LaCroix v. Marshall County, 409 Fed. App’x. 794, 803 (5th Cir.
2011).
As

Magistrate

Judge

Parker

explains,

protected

liberty

interests “are generally limited to state-created regulations or
statutes which affect the quantity of time rather than the quality
of time served by a prisoner.”

Madison v. Parker, 104 F.3d 765,

767 (5th Cir. 1997). A prisoner’s liberty interest protected by the
Due Process Clause is “generally limited to freedom from restraint
which ... imposes an atypical and significant hardship on the

5

inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

The protection

afforded by the Due Process clause does not extend to every adverse
or unpleasant condition experienced by an inmate.

Madison, 104

F.3d

over

at

767.

Prison

officials

have

discretion

inmate

classifications, and inmates have no legitimate due process claim
regarding these decisions.
(1976).

See Moody v. Daggett, 429 U.S. 78, 88

The United States Supreme Court has “rejected the notion

that every state action carrying adverse consequences for prison
inmates automatically activates a due process right ....
is

true

of

prisoner

classification

and

rehabilitative programs in the federal system.”

The same

eligibility
Id.

for

An inmate’s

classification and the resulting ineligibility for certain BOP
programs do not impose an atypical and significant hardship.

See

Becerra v. Miner, 248 Fed. App’x. 368, 370 (3rd Cir. 2007)(“Being
classified with a PSF of deportable alien and its resulting
consequences of disqualification for certain programs, as with any
other security classification, is not outside what a prisoner may
reasonably expect to encounter as a result of his or her conviction
in accordance with due process of law.”).

Moreover, it is well

settled that inmates do not have a constitutionally protected right
to serve a sentence in any particular institution.

Tighe v. Wall,

100 F.3d 41, 42 (5th Cir. 1996).
Magistrate Judge Parker therefore finds that the petitioner

6

cannot pursue his claims in a petition for writ of habeas corpus.
The Magistrate Judge recommends that the relief sought in the
Petition

for

Writ

of

Habeas

Corpus

be

denied

and

that

the

petitioner’s case be dismissed with prejudice.
In his objections, the petitioner contends that his habeas
petition is the proper vehicle to address his complaints. However,
he does not show that he is challenging the fact or duration of his
confinement.

Instead, he is challenging the conditions of his

confinement, and his habeas petition is not the proper vehicle for
relief.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Michael T. Parker’s
Report and Recommendation (docket entry 11) is ADOPTED as the
findings and conclusions of this Court;
FURTHER ORDERED that the petitioner Thuan Minh Pham’s Petition
for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (docket entry 1)
is DENIED.
A Final Judgment dismissing this case with prejudice shall be
entered of even date herewith.
SO ORDERED, this the 6th day of October, 2016.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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