SMITH-BEY v. DIRECTOR OF FEDERAL BUREAU OF PRISONS
Filing
2
OPINION. Signed by Judge Noel L. Hillman on 10/11/2011. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TELEDO SMITH-BEY,
Petitioner,
v.
DIRECTOR FOR THE BUREAU OF
PRISONS, et al.,
Respondents.
:
: Civil Action No. 11-3927 (NLH)
:
:
: OPINION
:
:
:
:
:
APPEARANCES:
TELEDO SMITH-BEY, Petitioner pro se
# 41003-037
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
HILLMAN, District Judge
This
matter
is
before
the
Court
on
the
application
Petitioner, Teledo Smith-Bey, for a writ of mandamus.
of
Petitioner
submitted an application to proceed in forma pauperis, and it
appears that he qualifies for indigent status. For the reasons set
forth below, however, the petition for a writ of mandamus will be
denied for lack of merit.
I. BACKGROUND
Petitioner brings this action for a writ of mandamus against
the Director of the Federal Bureau of Prisons (“BOP”).
The
following factual allegations are taken from the Petition, and are
accepted for purposes of this screening only.
The Court has made
no findings as to the veracity of Petitioner’s allegations.
Petitioner seeks this Court to compel the BOP to perform
duties allegedly mandated by 42 U.S.C. § 17541(a)(1)(G).
This
statute was purportedly created as part of the Second Chance Act
and
requires
the
BOP
to
provide
incentives
participation in skills development programs.
for
prisoner
Petitioner states
that he has participated in over 20 skills development programs,
but has not been extended any incentives within the meaning of 42
U.S.C. § 17541(a)(1)(G). (Petition ¶¶ 3-5). Petitioner states that
he has exhausted his administrative remedies and attaches the BOP
responses
to
his
Petition.
In
response
to
Petitioner’s
administrative remedy, the Warden provided the following answer:
Please be advised that there is no formal list of
incentives offered by the Bureau of Prisons, nor is a
formalized list required by the statute. Programs such
as the Residential Drug Treatment Program, the NonResidential Drug Treatment Program, and Leisure Time have
incentives for successful completion of programs,
including certificates, ceremonies, non-cash and cash
awards, and other tangible incentives. Your request for
a formal list of incentives is denied.
(Warden’s Response, Dated May 26, 2011, attached to Petition).
The Regional Director, J. L. Norwood, responded similarly to
Petitioner’s
administrative
appeal
on
May
19,
2011.
(Administrative Appeal Response, Dated May 19, 2011, attached to
Petition).
Petitioner seeks mandamus relief.
More specifically,
he demands that he be provided with the “statutorily mandated
incentives” as required by 42 U.S.C. § 17541(a)(1)(G).
II. DISCUSSION
Petitioner seeks relief by a petition for a writ of mandamus,
pursuant to 28 U.S.C. § 1651.
His petition is identical to the
claim raised in this District in another matter, Richardson v.
Director for the Federal Bureau of Prisons, 10-4939 (RMB).
Court in that case denied the petition for lack of merit.
The
2011 WL
809869 (D.N.J. 2011). The Third Circuit subsequently affirmed that
decision.
See Richardson v. Director for the Federal Bureau of
Prisons, 10-4939 (RMB), Docket Entry Nos. 6&7.
For the same
reasons as those stated by the Court in Richardson, this Court will
also deny the petition for lack of merit.
Pursuant to 28 U.S.C. § 1361, “[t]he district courts shall
have original jurisdiction of any action in the nature of mandamus
to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.”
however, is an extraordinary remedy.
U.S. 602, 616 (1984).
Mandamus,
See Heckler v. Ringer, 466
Certain conditions must be met before
mandamus relief is granted.
“Among these are that the party
seeking issuance of the writ have no other adequate means to attain
the relief he desires, and that he satisfy ‘the burden of showing
that
(his)
right
indisputable.’”
to
issuance
of
the
writ
is
clear
and
Kerr v. United States District Court, 426 U.S.
394, 403 (1976) (citations omitted).
The Supreme Court has set
forth conditions to be established before mandamus relief is
granted:
(1)
that
plaintiff
has
a
clear
right
to
have
his
application adjudicated; (2) that defendants owe a nondiscretionary
duty to rule on the application; and (3) that plaintiff has no
other adequate remedy. See Allied Chemical Corp. v. Daiflon, Inc.,
449 U.S. 33, 35 (1980); Kerr, 426 U.S. at 403 (1976); United States
v. Ferri, 686 F.2d 147, 152 (3d Cir. 1982).
Here, as in Richardson, the Court finds no basis for mandamus
relief. Petitioner cannot show that the right to the writ is clear
and undisputable.
The statute which Petitioner relies upon does
not require specific incentives, nor does it require a formal list.
Rather, 42 U.S.C. § 17541(a)(2) expressly states that “[i]ncentives
for a prisoner who participates in reentry and skills development
programs [] may, at the discretion of the Director, include...such
other incentives [beyond community confinement] as the Director
considers appropriate....” (emphasis added).
Therefore, as stated
by the Court in the Richardson case, the relief Petitioner actually
seeks requires a discretionary determination and is not a clear cut
ministerial function of the BOP.
Therefore, Petitioner has failed
to show any extraordinary factors that would warrant the granting
of a petition for a writ of mandamus.
III.
CONCLUSION
Based upon the foregoing, Petitioner’s petition for a writ
of mandamus will be denied for lack of merit.
No fees or costs
of suit will be assessed.
An appropriate Order accompanies this
Opinion.
Dated: October 11, 2011
/s/ Noel L. Hillman
NOEL L. HILLMAN
UNITED STATES DISTRICT JUDGE
At Camden, New Jersey
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