Garcia v. Wagner
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 9 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 5/26/17.(TLC)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ALCIDES GARCIA, #80652-004
CIVIL ACTION NO. 5:15-cv-4-DCB-MTP
ORDER ADOPTING REPORT AND RECOMMENDATIONS
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation (docket entry 9), to which no
objections were filed by the Petitioner. Having carefully reviewed
the Report and Recommendation, and applicable statutory and case
law, the Court finds and orders as follows:
Petitioner Alcides Garcia (“Garcia”) was convicted of Health
Care Fraud and sentenced in the United States District Court for
the Southern District of Florida on September 21, 2009.
Response (docket entry 6). He now files a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. See Petition (docket
Petitioner argues that the BOP has wrongfully (1) prohibited
him from being placed in a minimum security prison, (2) prohibited
(“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
(“FPI”). See Petition (docket entry 1 at 3-4).
Furthermore, Garcia claims that his incarceration at the
Adams County Correctional Complex (“ACCC”) contravenes the letter
and spirit of Program Statement 8120.02, Ch. 5, p. 6 and that this
constitutes a violation of his constitutional rights, specifically
the rights afforded by the Due Process Clause. See Petition (docket
entry 1 at 6-9).
II. Magistrate Judge’s Recommendation
Magistrate Judge Parker entered his Report and Recommendation
on December 16, 2016, wherein he considers Garcia’s petition under
28 U.S.C. § 2241 and recommends that the relief sought in the
Petition for Writ of Habeas Corpus be denied and that this case be
dismissed with prejudice. See Report and Recommendation (docket
entry 9 at 6).
The Magistrate Judge opines that the Petitioner cannot pursue
these claims in a 28 U.S.C. § 2241 petition. A habeas corpus matter
emanates when the action challenges the fact or duration of an
inmate’s confinement. Jackson v. Torres, 720 F.2d 877, 879 (5th
Cir. 1983). Alternatively, 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
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). In the
Fifth Circuit, 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. Petitioner has
failed to allege that any favorable determination would entitle
him to a speedier release.
Furthermore, the Magistrate Judge finds that Petitioner has
not asserted a violation of a constitutionally protected right
entitling him to relief pursuant to Bivens.1 Petitioner requests
that he be transferred to a facility where he would have an
benefits. He further claims that the refusal to transfer him
constitutes a violation of his rights afforded by the Due Process
Clause. However, the BOP’s decision to classify Petitioner as a
“Deportable Alien,” despite the fact that he may not be deported,
does not give rise to a constitutional claim. See e.g., Perez v.
Lappin, 672 F. Supp. 2d 35 (D.D.C. 2009)(holding that a “Deportable
Bivens, 403 U.S. 388 (1971).
Alien” Public Safety Factor as applied to a Cuban did not violate
Administrative Procedures Act); see also, Phuong Dong Duong v.
Martin, 2014 WL 1665012, at *2 (S.D. Miss. April 25, 2014)(holding
that petitioner’s security classification of “Deportable Alien”
did not implicate any constitutional interest).
The petitioner also claims that he was deprived of liberty
without due process because the BOP refused to transfer him to
another facility. A prisoner’s liberty interest protected by Due
Process is “generally limited to freedom from restraint which
. . . imposes an atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 483-84 (1995). The protections of the Due
Process Clause do not extend to every adverse or unpleasant
condition experienced by an inmate.
Madison v. Parker, 104 F.3d
765, 767 (5th Cir. 1997). Prisoner classification and eligibility
automatically activate a due process right. Moody v. Daggett, 429
U.S. 78, 88 (1976). Moreover, classification and ineligibility
also do not impose an atypical and significant hardship. Becerra
v. Miner, 248 F. App’x 368, 370 (3rd Cir. 2007). 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).
Finding no objection by the plaintiff and having reviewed
the Report and Recommendation for plain error, the Court is
satisfied that Magistrate Judge Parker has issued a thorough
IT IS HEREBY ORDERED that the undersigned ADOPTS Magistrate
Judge Parker’s recommendation as the findings and conclusion of
IT IS FURTHER ORDERED that the Petition for Writ of Habeas
Corpus (docket entry 1) is DENIED;
IT IS FURTHER ORDERED that the Petition is DISMISSED WITH
A Final Judgement dismissing the Petition with prejudice will
follow in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED, this is the 26th day of May, 2017.
/s/ David Bramlette________
UNITED STATES DISTRICT JUDGE
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