Jackson v. Zickefoose

Filing 10

OPINION. Signed by Chief Judge Jerome B. Simandle on 10/17/2012. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHEKEH TYKEEN JACKSON,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondent.

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HON. JEROME B. SIMANDLE
Civil No. 12-5537 (JBS)

OPINION

APPEARANCES:
SHEKEH TYKEEN JACKSON, #50836-037
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro Se
SIMANDLE, Chief Judge:
1.

On August 1, 2012, Shekeh Tykeen Jackson, Reg. No.

50836-037, an inmate confined at FCI Fort Dix in New Jersey,
filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2241 in the United States District Court for the District of
Maryland.

See Jackson v. United States, Civ. No. 12-2332 (DKC)

(D.Md. filed Aug. 6, 2012).

By order entered September 5, 2012,

Judge Deborah K. Chasanow transferred the action to this Court.
2.

In the Petition, Jackson challenged the Warden’s

decision dated July 18, 2012, denying his administrative remedy
requesting a six-month placement in a residential reentry center

(“RRC”), beginning on November 1, 2012.

(Dkt. 1-1, 1-2.) He

asserts:
Beginning on March 16, 2012, Petitioner has been asking
FCI Fort Dix staff for a 6 to 12 month RRC Placement .
. . . However, the staff has only offered a 3 to 4
month RRC Placement which is insufficient.
Petitioner’s request for a lengthy RRC Placement is
based on his exemplary prison programming, his need to
re-unite with his children, and to secure a home and a
job.
(Dkt. 1 at 8.)
3. Petitioner further asserted in the Petition that on July
23, 2012, he appealed the Warden’s decision to the Northeast
Regional Director of the Bureau of Prisons (“BOP”).
1.)

(Dkt. 1-1 at

On August 23, 2012, the Northeast Regional Director denied

the appeal:
You appeal the decision of the Warden at FCI Fort Dix
and contend staff did not properly consider your
request for Residential Reentry Center (RRC) placement.
You state you have completed the inmate skills
development program, the DAP and numerous other
programs. You feel based on the totality of your
circumstances, you should be considered for a more
lengthy RRC placement. You request reevaluation and
six months RRC placement.
Placement in an RRC is designed to provide transition
for inmates reintegrating into society near the end of
their sentences. Pursuant to Program Statement 7310.04
. . , when evaluating an inmate or RRC placement, a
number of factors are weighed in determining a
recommendation for placement. Determinations are based
on the individual’s needs, existing community
resources, institutional adjustment, length of
sentence, and the need to provide for the safety and
security of the general public. Inmates are also
considered under the SCA which looks at the resources
of the facility, nature and circumstances of the
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offense, history and characteristics of the inmate,
statement of the court imposing the sentence and any
pertinent policy statement by the U.S. Sentencing
Commission.
Records indicate you have a May 1, 2012, projected
release date. Your Unit Team considered your
individual situation, programming and transitional
needs pursuant to the above criteria and recommended a
90 to 120-day RRC placement. As indicated by the
Warden, this placement was determined to be sufficient
to provide you the greatest likelihood of successful
reintegration into the community. Staff are afforded
broad discretion in reaching this decision and you
present no evidence this discretion was abused.
Accordingly, your appeal is denied.
(Dkt. 6 at 4.)
4.

In response to the question on the form § 2241 Petition

asking why the petitioner did not appeal to the BOP’s Central
Office, Petitioner stated:
An appeal to the Office of General Counsel has not been
filed because Petitioner awaits his response from the
Regional Director. Considering time is short,
continuing with Administrative remedies is futile.
(Dkt. 1 at 6.)1
5.

On September 19, 2012, this Court dismissed the Petition

for failure to exhaust the BOP’s Administrative Remedy Program.
(Dkt. 8.)
6.

On October 2, 2012, Jackson filed a motion asking this

Court to reconsider the Order dismissing his Petition for failure
to exhaust administrative remedies.

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(Dkt. 9.)

Jackson asserts

The Regional Director responded to the appeal after
Petitioner signed the Petition.
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that this Court should have excused failure to exhaust as futile
because the Warden denied his request for a six-month placement
on July 18, 2012, and there would not have been enough time for
him to have exhausted administrative remedies before the November
1, 2012, requested (six-month) placement date.
7.

“The purpose of a motion for reconsideration is “to

correct manifest errors of law or fact or to present newly
discovered evidence.”

Max's Seafood Café v. Quinteros, 176 F.3d

669, 677 (3d Cir. 1999).

A proper Rule 59(e) motion for

reconsideration must rely on one of three grounds: (1) an
intervening change in controlling law; (2) the availability of
new evidence; or (3) the need to correct clear error of law or
prevent manifest injustice.

See N. River Ins. Co. v. CIGNA

Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995).
8.

Petitioner presents the same argument for excusing his

failure to exhaust in this motion that he presented in the
Petition, and he has not shown that exhaustion would be futile.
See Vasquez v. Strada, 684 F.3d 431, 434 (3d Cir. 2012)
(affirming District Court’s dismissal of § 2241 petition
challenging BOP’s denial of longer RRC placement for failure to
exhaust administrative remedies); Shoup v. Schultz, 2009 WL
1544664 at *4 (D.N.J. June 2, 2009) (“While Petitioner invites
this Court to reach an umbrella conclusion that no exhaustion of
administrative remedies is ever required for any litigant raising

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a § 2241 challenge on the grounds of the Second Chance Act, this
Court declines the invitation and finds that such holding would
fly in the face of the Third Circuit’s teaching - as to the
firmness of the exhaustion requirement”).
9.

This Court will deny the motion for reconsideration

because Jackson has not shown a change of law, new evidence, or
the need to correct manifest injustice.
10.

An appropriate Order accompanies this Opinion.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief Judge
Dated:

October 17

, 2012

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