Rodriguez v. Lynch et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 10 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 12/06/18 (KNS)

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

JUSTO PASTOR RODRIGUEZ RODRIGUEZ
V.

PETITIONER

CAUSE ACTION NO. 5:17-CV-13-DCB-MTP

WARDEN DAVE BERKEBILE, ET AL.

RESPONDENTS

ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the pro se Petition of Justo Pastor
Rodriguez Rodriguez [Doc. 1] for a writ of habeas corpus under 28
U.S.C. § 2241; and on United States Magistrate Judge Michael T.
Parker’s Report and Recommendation [Doc. 10], to which no objection
was

filed

by

Plaintiff.

This

Court

ADOPTS

the

Report

and

Recommendation and DENIES the Petition [Doc. 1] and DISMISSES the
action WITH PREJUDICE.
Magistrate

Judge

Parker’s

Report

and

Recommendation

recommends “that the relief sought in the Petition[1] be denied
and that this action be dismissed with prejudice.” Doc. 10, p.5.
Petitioner alleges that Respondents denied his requests to be
placed in a “Halfway House,” also known as a Residual Reentry
Center (“RRC”). Doc. 1, p.2. Petitioner argues that Respondents’
refusal to place him in a RRC represents a violation of his rights
under

the

Equal

Protection

Clause

of

the

United

States

Constitution. Doc. 1, p.6. He also asserts a civil rights claim

under 42 U.S.C. § 1983 for the deprivation of his rights, which
presumably is a claim based on the Due Process Clause. Doc. 1,
p.6.
Background
On January 15, 2009, Petitioner was sentenced in the United
States District Court for the Western District of Louisiana for
aggravated reentry following deportation. Doc. 8-1, p.1. He was
sentenced to a 120-month term of imprisonment and five years of
post-release supervision. Doc. 8-1, p.1.
Analysis
It appears that Petitioner is attempting to bring this action
as a habeas corpus petition and a civil rights suit. See Doc. 1.
Any challenge to the fact or duration of a prisoner’s confinement
is a habeas corpus matter. Jackson v. Torres, 720 F.2d 877, 879
(5th Cir. 1983). Whereas, a prisoner’s challenge to conditions of
confinement is properly treated as a Section 1983 matter or Bivens
v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Id.; see Cook v. Texas Dep’t of Criminal Justice
Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994). A
simple, bright-line rule for determining which procedural path a
prisoner should pursue is if a favorable determination would not
automatically entitle the prisoner to accelerated release, the
proper vehicle is a Section 1983 suit. Carson v. Johnson, 112 F.3d
818, 820–821 (5th Cir. 1997).
2

Here, Petitioner is not seeking an immediate release from
custody. Instead, Petitioner seeks a transfer to a RRC. Therefore,
the proper vehicle for Petitioner’s claims is a Section 1983 suit.
Id.

However, “federal officials, acting under color of federal

law rather than state law, are not subject to suit under [Section]
1983.”

Resident Council of Allen Parkway Village v. U.S. Dep’t of

Hous. & Urban Dev., 980 F.2d 1043, 1053 (5th Cir. 1993)(citing
Broadway v. Block, 694 F.2d 979 (5th Cir. 1982)).
The Court may construe Petitioner’s claims as a Bivens action:
“A Bivens action is analogous to an action under [Section] 1983
except that [section] 1983 applies to constitutional violations by
state, rather than federal actors; this court does not distinguish
between Bivens and [Section] 1983 claims.” Murrell v. Chandler,
277 Fed. App’x 341, 343 (5th Cir. 2008)(citing Izen v. Catalina,
398 F.3d 363, 367 n.3 (5th Cir. 2005)).
Petitioner claims he does not have an Immigration Detainer.
Doc. 1, p.3. The record, however, demonstrates that on July 9,
2010, Immigration and Customs Enforcement issued an immigration
detainer on Petitioner. Doc. 8-3. Prison officials have discretion
over inmate classifications, and inmates have no legitimate due
process claim regarding these decisions. Moody v. Daggett, 429
U.S. 78, 88 (1976); see Doc. 10, p.3, n.2.

3

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. BOP Program Statement 5100.08, Ch. 5, pp.7–
13. Petitioner is a citizen of Honduras and is classified as
deportable. Doc. 8-1, p.3; Doc. 8-2; Doc. 8-3. The BOP assigns a
Public Safety Factor (“PSF”) of “Deportable Alien” to inmates who
are not citizens of the United States. BOP Program Statement
5100.08, Ch. 5, pp.7–13. The designation of “Deportable Alien”
requires that an inmate be housed in at least a Low security level
institution. BOP Program Statement 5100.08, Ch. 5, pp.9, 13. BOP
institutions are classified into five security levels: Minimum,
Low,

Medium,

High,

and

Administrative.

BOP

Program

Statement

5100.08, Ch. 1, p.1. A RRC is considered a minimum security
facility. See Phuong Dong Duong v. Martin, 2014 WL 1665012, at *2
(S.D. Miss. 2014)(“A halfway house or RRC is considered a minimum
security facility; therefore, an inmate who cannot be housed in a
minimum security facility is ineligible for [a minimum security
housing program].”). Therefore, an inmate who cannot be housed in
a minimum security facility is ineligible for a transfer to a RRC.
Id.
The BOP’s decision to classify Petitioner as a “Deportable
Alien,” does not give rise to a constitutional claim. Id. (holding
that inmate has no constitutional right to participate in a
rehabilitation

program).

The

United
4

States

Supreme

Court

has

“rejected the notion that every state action carrying adverse
consequences for prison inmates automatically activates a due
process right. . . . The same is true of prisoner classification
and

eligibility

for

rehabilitative

programs

in

the

federal

system.” Moody v. Daggett, 429 U.S. 78, 88, n.9 (1976).
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 inmate in
relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 483–84 (1995). An inmate’s classification
and the resulting ineligibility for certain 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.”).
Petitioner also raises a claim based on the Equal Protection
Clause.

Petitioner

Respondents

treated

asserts
him

that

because

differently

than

he

is

others

Hispanic,
by

not

transferring him to a RRC. To state an equal protection claim, a
party’s allegations must satisfy two prongs: (1) that he received

5

treatment

differently

than

treatment

received

by

similarly

situated individuals; and (2) that the unequal treatment stemmed
from a discriminatory intent. Taylor v. Johnson, 257 F.3d 470, 473
(5th Cir. 2001). Petitioner has failed to provide support for his
conclusory statement that he has been excluded from placement in
a RRC because of his race. The record demonstrates that Petitioner
is ineligible for a transfer to a RRC because he is classified as
a Deportable Alien, not because he is Hispanic. Additionally, the
Fifth Circuit has held that prisoners with immigration detainers
“cannot show that exclusion for rehabilitation programs, or from
halfway house placement, establishes that alien prisoners, as an
identifiable
similarly

group,

situated

are

being

prisoners

treated
who

are

differently
not

aliens.”

from

other

Gallegos-

Herandez v. U.S., 688 F.3d 190, 195 (5th Cir. 2012).
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Parker’s Report
and Recommendation [Doc. 10] is ADOPTED; the Petition [Doc. 1]
is DENIED; and the action is DISMISSED WITH PREJUDICE. A final
judgment will follow.
SO ORDERED this the 6th day of December, 2018.
__/s/ David Bramlette_______
UNITED STATES DISTRICT JUDGE

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