THORNDIKE v. HOLLINGSWORTH
Filing
10
OPINION FILED. Signed by Judge Noel L. Hillman on 9/8/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN J. HOLLINGSWORTH,
:
:
Respondent.
:
___________________________________:
THOMAS THORNDIKE,
Civ. No. 15-2014 (NLH)
OPINION
APPEARANCES:
Thomas Thorndike, # 20408-014
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se
David Bober, AUSA
United States Attorney’s Office
402 E. State St., Room 430
Trenton, NJ 07102
Counsel for Respondent
HILLMAN, District Judge
Petitioner, Thomas Thorndike, a federal prisoner confined
at the Federal Correctional Institution in Fort Dix, New Jersey,
brings this petition for a writ of habeas corpus, filed pursuant
to 28 U.S.C. § 2241, as a result of his denial of eligibility
for the Residential Drug Abuse Program (“RDAP”).
paid the applicable filing fee. (ECF No. 1).
Petitioner has
Respondent filed
an Answer to the Petition on June 1, 2015. (ECF No. 5).
Petitioner also submitted several letters in support of his
Petition and in opposition to Respondent’s Answer. (ECF Nos. 4,
6, 8).
For the reasons set forth below, the Petition will be
DENIED.
I.
BACKGROUND
Petitioner pled guilty to aiding and assisting the
preparation of a false tax return pursuant to 26 U.S.C. §
7206(2), and making and subscribing to a false tax return
pursuant to 26 U.S.C. § 7206(1).
imprisonment.
He was sentenced to 72 months’
At some point during his incarceration at FCI
Fort Dix, Petitioner sought enrollment into the Residential Drug
Abuse Program (“RDAP”).
However, Petitioner was refused
enrollment into RDAP because a Drug Abuse Program Coordinator
determined that he did not meet the criteria for admission.
In
his Petition, Petitioner asserts that he is entitled to an
“Eligibility Interview” prior to being refused admission. (Pet.
6, ECF No. 1).
Accordingly, he asserts that prison officials
are abusing their discretion and violating their own policy by
denying him eligibility for RDAP without an interview.
Respondent has filed a response and sets forth three
arguments in support of denial of the Petition.
First, to the
extent Petitioner challenges the BOP’s policy regarding
admission into RDAP, Respondent contends that this policy has
been consistently upheld by courts as a valid exercise of the
Bureau of Prison’s discretion. (Resp’t’s Br. 14-17, ECF No. 5).
2
Furthermore, Respondent explains that Petitioner’s argument is
based on an outdated Program Statement.
Respondent contends
that the current Program Statement (5330.11) superseded the one
referenced by Petitioner in his Petition.
Respondent states
that, under the current version, an inmate is not required to be
interviewed in connection with RDAP unless his central file and
other collateral documentation provide evidence of substance
abuse.
Respondent next argues that, to the extent Petitioner
challenges his individual determination, the district court
lacks jurisdiction to review the eligibility determination.
(Resp’t’s Br. 17-19, ECF No. 5).
Regardless, Respondent asserts
that the Bureau of Prison’s decision was appropriate because
Petitioner’s central file contained no evidence of a substance
abuse problem in the 12 months prior to his arrest. (Resp’t’s
Br. 21-22, ECF No. 5).
Finally, Respondent asserts that the Petition should be
denied because prison inmates do not have a protected liberty
interest in participating in RDAP or receiving a sentence
reduction for completing RDAP. (Resp’t’s Br. 19-21, ECF No. 5).
Petitioner has filed several letters in further support of
his Petition and in opposition to the Answer filed by
Respondent. (ECF Nos. 4, 6, 8).
Petitioner clarifies that he
believes there exist two separate interviews: an “Inmate
3
Screening Eligibility Interview” and a “Clinical Interview.”
(Letter 1, June 25, 2015, ECF No. 8).
Petitioner further states
that he is entitled to the Inmate Screening Eligibility
Interview in addition to a review of his central file.
Petitioner explains that the “verifying documentation [of
substance abuse] . . . are first developed in the Inmate
Screening Eligibility Interview and later formed into a
diagnosis in the Clinical Interview.” (Id.).
II.
STANDARD OF REVIEW
United States Code Title 28, Section 2243, provides in
relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers. Estelle v. Gamble, 429
U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief. See Denny v. Schult,
4
708 F.3d 140, 148 n.3 (3d Cir. 2013); See also 28 U.S.C. §§
2243, 2255.
III. DISCUSSION
In 1990, Congress charged the Bureau of Prisons (“BOP”)
with making available “appropriate substance abuse treatment for
each prisoner the Bureau determines has a treatable condition of
substance addiction or abuse.” 18 U.S.C. § 3621(b).
To carry
out that requirement, as part of the 1994 Violent Crime Control
and Law Enforcement Act, Congress amended § 3621 to require the
BOP, subject to the availability of appropriations, to provide
residential substance abuse treatment for all “eligible”
prisoners. See 18 U.S.C. § 3621(e)(1)(C).
An “eligible” prisoner is one who is “determined by the
Bureau of Prisons to have a substance abuse problem,” and who is
“willing to participate in a residential substance abuse
treatment program.” 18 U.S.C. § 3621(e)(5)(B)(i)and (ii).
As an
incentive for successful completion of the residential treatment
program, the period of time a prisoner convicted of a nonviolent
offense remains in custody after successfully completing such a
treatment program may be reduced up to one year by the BOP. See
18 U.S.C. § 1361(e)(2).
The BOP has promulgated regulations to implement these
statutory requirements.
The pertinent regulation in this case
is codified at 28 C.F.R. § 550.53.
5
With respect to this
regulation, BOP Program Statement 5330.11 states that, when an
inmate is either referred to RDAP or applies for the program,
“[u]pon completion of the Psychology Intake Screening, the
psychologist will refer inmates with a substance use history and
an interest in treatment to the institution’s DAPC [Drug Abuse
Program Coordinator].” FEDERAL BUREAU
OF
PRISONS, PROGRAM STATEMENT
5330.11, PSYCHOLOGY TREATMENT PROGRAMS, § 2.5.8.
With respect to the screening process, the Program
Statement states, in relevant part, that “the DTS [Drug
Treatment Specialist] will review an inmate’s Central File and
other collateral sources of documentation to determine”
eligibility. Id.
The Program Statement further clarifies that a
Clinical Interview will only be conducted where verifying
documentation of substance abuse is found or produced. See Id.
at § 2.5.9 (“If verifying documentation is found or produced,
and only then, inmates who volunteer for the RDAP will be
personally interviewed by the DAPC.”) (emphasis added).
Here, as his only ground for relief, Petitioner states:
“The BOP refuses to follow the Congressional approve [sic]
Residential Drug Abuse Program (RDAP) Rules 28 C.F.R. § 550.50
and the BOP Statement 5330.11 by allowing me the Eligibility
6
Interview in concert with the above regulations in order to
establish abuse.” (Pet. 6, ECF No. 1).
IV.
ANALYSIS
A. Challenge to BOP Policy
To the extent Petitioner means to challenge the BOP’s
policy or practice regarding eligibility determination for RDAP,
his Petition must be denied.
When a statute unambiguously
expresses the intent of Congress, the agency must give effect to
that intent. See Chevron U.S.A. Inc. V. Natural Res. Def.
Council, 467 U.S. 837, 842–43, 104 S. Ct. 2778, 81 L.Ed.2d 694
(1984).
Alternatively, when Congress has left discretion for
agency action, the agency's interpretation is entitled to
substantial deference under Chevron. See United States v. Mead
Corp., 533 U.S. 218, 121 S. Ct. 2164, 150 L.Ed.2d 292 (2001).
Where “Congress has ‘explicitly left a gap for the agency to
fill,’ the agency's regulation is ‘given controlling weight
unless [it is] arbitrary, capricious, or manifestly contrary to
the statute.’” Household Credit Servs., Inc. v. Pfennig, 541
U.S. 232, 239, 124 S. Ct. 1741, 1747, 158 L. Ed. 2d 450 (2004)
(citing Chevron, 467 U.S. at 843-44).
With respect to the statute in question, 18 U.S.C. § 3621,
courts are generally in agreement that the policy and practice
of the BOP with respect to RDAP eligibility is a reasonable
interpretation. See, e.g., Guttenberg v. Zickefoose, No. 127
4530, 2013 WL 1501797, at *2 (D.N.J. Apr. 11, 2013) (“The BOP
policy, which relies upon review of an inmate's pre-sentence
investigation report and central file, has been held to be
reasonable by many courts.”) (citations omitted); Anderson v.
Schultz, No. 09-4683, 2010 WL 5017352, at *4 (D.N.J. Nov. 23,
2010) (collecting cases); Montilla v. Nash, No. 05-2474, 2006 WL
1806414, at *3 (D.N.J. June 28, 2006) (“Thus, the challenged
policy and practice of the BOP is a reasonable interpretation of
the statute.”) (citations omitted).
Based on the administrative grievances which Petitioner
attaches to his Petition, it appears that Petitioner believes
that he was entitled to an eligibility interview prior to a
review of the documents in his central file. (Pet’r’s BP-10
Attach. 7, ECF No. 1-1).
However, as Respondent points out,
Petitioner cites to an outdated Program Statement; namely, to
Program Statement 5330.10, § 5.4.1. (Id.).
This Program
Statement was superseded in 2009 by BOP Program Statement
5330.11, discussed above.
Accordingly, the outdated Program
Statement provides no basis for the habeas relief Petitioner
seeks and Petitioner’s assertion that he was first entitled to
an eligibility interview is without merit.
Additionally, Petitioner’s assertion that the Program
Statement provides for two separate interviews — an “Inmate
Screening Eligibility Interview” and a “Clinical Interview” — is
8
unsupported.
The BOP Program Statement does not include a
discussion on an “Inmate Screening Eligibility Interview;” nor
is that term ever mentioned.
Rather, the Program Statement
provides for a “Psychology Intake Screening,” which, as
discussed above, consists of a review of the “inmate’s Central
File and other collateral sources of documentation” and, thus,
is not an interview. FEDERAL BUREAU
OF
PRISONS, PROGRAM STATEMENT
5330.11, PSYCHOLOGY TREATMENT PROGRAMS, § 2.5.8.
Pursuant to the
Program Statement, no “Eligibility Interview” is required.
It
is only upon discovery or production of verifying documentation
as a result of the screening process that an interview — the
“Clinical Interview” — will be conducted. Id. at § 2.5.9.
Petitioner’s assertion that an “Eligibility Interview” is
required appears to be based on two sources: (1) dicta from the
opinion of another district court in this circuit, see Lam v.
Hufford, No. 3:11-CV-1903, 2012 WL 760595, at *3 (M.D. Pa. Feb.
13, 2012) report and recommendation adopted sub nom. Chuong Lam
v. Hufford, No. 3:11-CV-1903, 2012 WL 760591 (M.D. Pa. Mar. 7,
2012); and (2) language contained in a letter Petitioner
received in response to an administrative grievance, see (Letter
2, May 9, 2015, ECF No. 4).
With respect to Petitioner’s citation to Lam, 3:11-CV-1903,
2012 WL 760595, this Court notes that the court in Lam stated:
9
Under these program rules, in order to assess if an
inmate has a verifiable documented drug abuse problem,
drug abuse program staff must first determine if the
inmate has a substance abuse disorder by conducting
the RDAP Eligibility Interview and by reviewing all
pertinent documents in the inmate's central file to
corroborate self-reported information.
Id. at *3 (emphasis added).
We are at a loss to fully understand the Lam court’s
reference to an “RDAP Eligibility Interview”.
As discussed
above, there is no provision in the current BOP Program
Statement which requires any sort of “Eligibility Interview.”
One explanation may be that Lam was first evaluated in early
2009 under the old Program Statement and that procedure carried
through his later evaluations in 2011.
Id. at *1, *2.
In any
event, our review of the current statement indicates that the
Lam court relied upon an inaccurate recitation of the RDAP
eligibility determination procedure set forth in the BOP Program
Statement.
Accordingly Lam does not support Petitioner’s claims
in the context of this habeas Petition.
The letter supplied by Petitioner — which appears to be a
response to an administrative grievance — provides similarly
misleading language and is also a likely artifact of the old
procedure.
More specifically, in response to Petitioner’s
request for a “screening eligibility interview,” the Acting
Administrator explained that Program Statement 5330.11
10
requires staff to determine if inmates requesting RDAP
have a verifiable documented drug abuse problem within
the 12 months immediately preceding your arrest for
the charges which culminated in your current sentence.
This requires an eligibility interview, followed by a
review of all pertinent documents compiled in the
central file to corroborate self-reported information.
. . . Generally, there must be verification in the
Presentence Investigation Report (PSR) or other
similar documents in the central file to support the
diagnosis [of substance abuse or dependence].
(Letter 2, ECF No. 4) (emphasis added).
The language of this letter likewise seems to suggest that
there exists an initial “Eligibility Interview.”
However, as
set forth above, it is plainly evident from BOP Program
Statement 5330.11 that no such interview is required.
While the
language in the letter is misleading and, while it may be
understandably frustrating for Petitioner who reasonably relied
on this document in support of his Petition, it does not, and
cannot, change the procedure set forth in BOP Program Statement
5330.11 — a procedure which does not require an “Eligibility
Interview;” and a procedure which this Court, like other courts,
finds to be a reasonable interpretation of 18 U.S.C. § 3621.
Also, it is evident from another administrative grievance
attached to the Petition that Petitioner believes that only
documentation of substance “use” is required to trigger the
clinical interview requirement. (Pet’r’s BP-11 Attach. 3-4, ECF
No. 1-1).
Petitioner cites Kuna v. Daniels, 234 F. Supp. 2d
1168 (D. Or. 2002) and Salvador-Orta v. Daniels, 531 F. Supp. 2d
11
1249 (D. Or. 2008) in support of this assertion.
Indeed, the
holding in Kuna suggests that evidence of “use” alone, and not
“abuse or dependence,” is enough to provide verifying
documentation.
However, the Court notes that this line of
cases, which are decisions from district courts in another
circuit, are not binding on this Court.
Further, Kuna and Salvador-Orta were decided before 2009;
and, thus, before BOP Program Statement 5330.10 was superseded
by the current version BOP Program Statement 5330.11, discussed
above.
This is significant because the current Program
Statement explicitly notes:
Recreational, social, or occasional use of alcohol
and/or other drugs that does not rise to the level of
excessive or abusive drinking does not provide the
required verification of a substance use disorder.
Any verifying documentation of alcohol or other drug
use must indicate problematic use; i.e., consistent
with the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Health Disorders
(DSM) criteria.
FEDERAL BUREAU
OF
PRISONS, PROGRAM STATEMENT 5330.11, PSYCHOLOGY TREATMENT
PROGRAMS, § 2.5.8 (emphasis added).
Accordingly, Petitioner is mistaken that only evidence of
“use” is required.
Rather, the verifying documentation must
indicate “problematic use.” Id.
This Court agrees with the
majority of other courts and determines that the BOP’s policy —
specifically its policy of declining a Clinical Interview where
there is no verifying documentary evidence of substance abuse,
12
see id. at § 2.5.9, supra — is reasonable.
Petitioner is not
entitled to habeas relief on this ground.
B. Challenge to BOP’s individual determination
To the extent Petitioner challenges the BOP’s eligibility
determination as it applies to him, the Court finds that
Petitioner’s claim is without merit.
1. Jurisdiction
As an initial matter, Section 3625 of Title 18 of the
United States Code is titled “Inapplicability of the
Administrative Procedure Act” (“APA”).
In relevant part, § 3625
states that the provisions of the APA “do not apply to the
making of any determination, decision, or order under this
subchapter.” 18 U.S.C.A. § 3625.
Included in that subchapter is
the statute at issue in this case, 18 U.S.C. § 3621(e). See
Crimes and Criminal Procedure, Part II – Criminal Procedure,
Chapter 229 – Postsentence Administration, Subchapter C –
Imprisonment, 18 U.S.C. §§ 3621-3626 (2015).
Accordingly, many
courts take the position that district courts lack jurisdiction
to consider challenges to an individualized discretionary
decision regarding RDAP eligibility. See, e.g., Standifer v.
Ledezma, 653 F.3d 1276, 1279 (10th Cir. 2011) (“To the extent
Standifer challenges only the BOP's decision regarding his
eligibility for RDAP participation, his argument is expressly
foreclosed by 18 U.S.C. § 3625, which prohibits judicial review
13
under the APA of RDAP placement decisions.”); Reeb v. Thomas,
636 F.3d 1224, 1228 (9th Cir. 2011) (“Accordingly, we hold that
federal courts lack jurisdiction to review the BOP's
individualized RDAP determinations made pursuant to 18 U.S.C. §
3621 [in light of 18 U.S.C. § 3625.]”); Warman v. Philips, No.
1:08CV217, 2009 WL 2705833, at *2 (N.D.W. Va. Aug. 25, 2009)
aff'd, 353 F. App'x 859 (4th Cir. 2009) (“Pursuant to 18 U.S.C.
§ 3621(b) and (e), determination of eligibility for substance
abuse treatment is within the sole discretion of the BOP and,
pursuant to 18 U.S.C. § 3625, this Court lacks the authority to
review such decisions unless a cognizable constitutional claim
is presented.”); see also Johnston v. Thomas, No. 09-1096-MO,
2010 WL 2574090, at *5 (D. Or. June 24, 2010) (collecting cases)
(holding that “Congress intended that BOP rulemaking be
reviewable under the APA, but not its adjudication of specific
cases.”).
Several district courts in the Third Circuit have also
taken this position. See United States v. Saul, No. 09-CR-07812, 2014 WL 3508640, at *2 (E.D. Pa. July 16, 2014) (“A federal
court simply lacks habeas jurisdiction to hear a challenge to
the BOP's RDAP decisions with regard to a specific
individual.”); United States v. Hughes, No. 06-377-9, 2012 WL
3627466, at *2 (E.D. Pa. Aug. 23, 2012) (“We lack jurisdiction
to review the BOP's individualized determinations as to RDAP
14
placement and eligibility.”).
This Court agrees that a
challenge to an individualized determination made by the BOP
under § 3621 is expressly foreclosed by 18 U.S.C. § 3625, which
prohibits judicial review under the APA of RDAP placement
decisions.
However, Respondent has not cited to, and this Court has
not found, a decision by the Court of Appeals for the Third
Circuit which explicitly adopts this approach.
Moreover, the
Third Circuit has reviewed other individualized BOP decisions —
which were made pursuant to statutes in the same sub-chapter as
the statute at issue in this case — using the abuse of
discretion standard set forth in the APA. See, e.g., Brown v.
Warden Fairton FCI, 617 F. App'x 117, 119 n.3 (3d Cir. 2015)
(reviewing BOP’s application of the factors set forth in §
3621(b) for abuse of discretion); Vasquez v. Strada, 684 F.3d
431, 434 (3d Cir. 2012) (same); Ramos-Rodriguez v. Warden, FCI
Fort Dix, 446 F. App'x 417, 419 (3d Cir. 2011) (same). 1
1
As set forth above, § 3625 states that the provisions of
the APA “do not apply to the making of any determination,
decision, or order under this subchapter.” 18 U.S.C.A. § 3625.
The cases from the Third Circuit Court of Appeals which utilize
the “abuse of discretion” standard in reviewing decisions made
pursuant to statutes in the same subchapter as § 3625 do not
explicitly cite to the APA as the basis for the abuse of
discretion standard employed. Instead, these cases trace the
authority to review under an abuse of discretion standard back
to the holding in Barden v. Keohane, 921 F.2d 476 (3d Cir.
1990). See, e.g., Ramos-Rodriguez, 446 F. App'x at 419 (citing
Barden); Vasquez, 684 F.3d at 434 (citing Barden); see also
15
Further, several district courts in this circuit have
reviewed the BOP’s individual RDAP eligibility determinations
under § 3621(e) — the statute at issue in this case — using the
“arbitrary, capricious, [or] abuse of discretion” standard set
forth in the APA. 5 U.S.C. § 706(2); see also, e.g., Guttenberg,
No. 12-4530, 2013 WL 1501797, at *3 (“Here, this Court finds
that the BOP did not abuse its discretion in determining that
Petitioner was unqualified to participate in the RDAP
program.”); Lam v. Hufford, No. 3:11-CV-1903, 2012 WL 760595, at
*4 (M.D. Pa. Feb. 13, 2012) report and recommendation adopted
sub nom. Chuong Lam v. Hufford, No. 3:11-CV-1903, 2012 WL 760591
(M.D. Pa. Mar. 7, 2012) (internal quotations and citations
Barden, 921 F.2d at 478 (“Any further court review of the
Bureau's action will be limited to abuse of discretion.”).
As an initial matter, the statute at issue Barden was 18
U.S.C. § 4082(b), which is not in the same subchapter as § 3625,
and, thus, was not foreclosed to review under the APA by
statute. Moreover, although the Barden court does not provide a
specific source or citation for the “abuse of discretion”
standard it suggested, this standard is referenced only twice in
the opinion, and it is evident that the Barden court adopted the
standard by citing to a case from the United States Court of
Appeals for the District of Columbia. See Farmworker Justice
Fund, Inc. v. Brock, 811 F.2d 613, 620 (D.C. Cir.) vacated sub
nom. Farmworkers Justice Fund, Inc. v. Brock, 817 F.2d 890 (D.C.
Cir. 1987). The District of Columbia case, in turn, cited
directly to the APA. See id. (“Second, an agency may not abuse
its discretion. Even within the scope of authority established
by statute, an agency's decision may nonetheless be ‘arbitrary’
or ‘capricious.’”) (citing 5 U.S.C. § 706(2)(A)). Thus, the
abuse of discretion standard referenced in Barden, and utilized
by the Third Circuit in its review of individualized
determinations made by the BOP, is derived from the APA.
16
omitted) (“Instead, it has been consistently held that in the
absence of a showing that the Bureau of Prisons' decision was
‘arbitrary, capricious, or an abuse of discretion’, [] or
‘[a]bsent an allegation that the BOP violated established
federal law, the United States Constitution, or exceeded the its
statutory authority in making the determination that Petitioner
was ineligible for RDAP, the Court does not have jurisdiction to
review Petitioner's claim.’”); Anderson v. Schultz, No. 09-4683,
2010 WL 5017352, at *4 (D.N.J. Nov. 23, 2010) (“In this case,
there was no abuse of discretion in the BOP's application of the
policy to Petitioner.”); Fuentes v. Samuels, No. 07-2336, 2008
WL 442211, at *7 (D.N.J. Feb. 14, 2008) (“In essence, the
question presented in the Petition is whether the BOP's
determination that Petitioner is not eligible for the RDAP under
18 U.S.C. § 3621(b)(5), (e)(1), 28 C.F.R. § 550.56(a), and
Program Statement 5330.10 § 5.4.1, was arbitrary and capricious
and must be set aside under the Administrative Procedure Act.”).
In light of this somewhat conflicting case law, the Court
will assume, without deciding, that it has jurisdiction to
review the BOP’s individual determination for “abuse of
discretion”.
For the reasons set forth below, there is nothing
before the Court to suggest that the BOP’s individual
determination with respect to Petitioner’s eligibility for RDAP
was arbitrary, capricious, or an abuse of discretion.
17
Assuming
jurisdiction exists, the Petition would be denied on the merits,
as discussed below.
2. Merits
In this case, a Drug Treatment Specialist (“DTS”) reviewed
Petitioner’s central file on May 28, 2014. (Resp’t’s Br. 12, ECF
No. 5); (Ex. 1, RDAP Screening Summary, ECF No. 5-7).
Specifically, the DTS reviewed Petitioner’s Presentence
Investigation Report (“PSI”), which indicated that Petitioner
never participated in substance abuse treatment.
Moreover,
“[i]n regard to alcohol, [Petitioner] related that he consumes
it occasionally but has never experienced an addiction to it.
He further related that he has never experimented with illegal
drugs of any kind.” (Ex. 1, RDAP Screening Summary, ECF No. 57).
As discussed above, evidence of mere “use” is insufficient
to establish eligibility for RDAP.
Rather, “any verifying
documentation of alcohol or other drug use must indicate
problematic use.” FEDERAL BUREAU
OF
PRISONS, PROGRAM STATEMENT 5330.11,
PSYCHOLOGY TREATMENT PROGRAMS, § 2.5.8.
The DTS’s report explicitly
states that Petitioner’s “PSI does not support a problematic
pattern of drug use during the target period.” (Ex. 1, RDAP
Screening Summary, ECF No. 5-7).
Because no documentation of
substance abuse was found, the DTS determined that Petitioner
was not qualified for RDAP and, therefore, he was not referred
for an interview. (Id.).
18
The record in this case indicates that the BOP’s decision
to deny Petitioner entry into RDAP “was a discretionary one
based upon valid and facially neutral factors.” Lam, No. 3:11CV-1903, 2012 WL 760595, at *5.
Therefore, it cannot be said
that the BOP’s decision was “arbitrary, capricious, or an abuse
of discretion.”
Accordingly, Petitioner’s claim is without
merit and will be denied. See, e.g. Connelly v. Bureau of
Prisons, No. 13-3966, 2013 WL 5592413, at *1 (D.N.J. Oct. 10,
2013) (dismissing petition because petitioner's presentence
investigation report indicated that Petitioner had no alcohol or
controlled substance abuse issues); Guttenberg, No. 12-4530 RMB,
2013 WL 1501797 (same) 2; Anderson, No. 09-4683, 2010 WL 5017352,
at *4 (“The Court's review of the PSR demonstrates that the BOP
2
The Court notes that Petitioner references Guttenberg v.
Zickefoose, No. 12-4530, 2013 WL 1501797 (D.N.J. Apr. 11, 2013),
in his letter (ECF No. 8) submitted in response to Respondent’s
Answer. Specifically, Petitioner asserts that this case is
distinguishable because the inmate in Guttenberg “got an
interview.” (Letter 2, June 25, 2015, ECF No. 8). To the extent
Petitioner believes that the inmate in Guttenberg received the
type of “Inmate Screening Eligibility Interview” Petitioner
seeks in the instant Petition, he is mistaken. The “interview”
referenced in Guttenberg was a “presentence report interview”
which resulted in the “presentence investigation report (PSI)
[that] was used in part to assess his eligibility [for RDAP].”
Guttenberg, No. 12-4530, 2013 WL 1501797, at *1-2. The court’s
opinion in Guttenberg does not indicate that the inmate there
received some type of interview that Petitioner here was denied.
Rather, the opinion establishes that the inmate in Guttenberg,
like Petitioner in this case, was deemed ineligible for RDAP
participation because there was no evidence of substance abuse
in his file. Id.
19
did not abuse its discretion, as there is no indication of drug
use [during the relevant time period].”).
C. Challenge based on deprivation of liberty interest
To the extent Petitioner means to assert a due process
violation or a deprivation of a liberty interest in reduction of
sentence as a result of the BOP denying him entry into RDAP, his
Petition is without merit.
Upon successful completion of a drug
treatment program, the BOP has the discretion to alter the
prisoner's conditions of confinement and to reduce his term of
imprisonment, but sentence reduction is not mandatory. See Lopez
v. Davis, 531 U.S. 230, 121 S. Ct. 714, 148 L. Ed. 2d 635
(2001).
Moreover, it is well established that no liberty
interest exists in receiving a sentence reduction. See Sandin v.
Conner, 515 U.S. 472, 484 (1995) (holding that liberty interests
afforded to prisoners are “generally limited to freedom from
restraint which . . .
imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
life.”).
“Thus, denial of entry in the RDAP program and
subsequent ineligibility for potential sentence reduction after
participation in RDAP is not an ‘atypical and significant
hardship’ upon an inmate.” Guttenberg, No. 12-4530, 2013 WL
1501797, at *3; see also, e.g., Garcia v. Zickefoose, No. 121657, 2013 WL 5406630, at *4 (D.N.J. Sept. 25, 2013)
(“Petitioner's due process rights would not be implicated
20
because he has no liberty interest in a sentence reduction under
§ 3621(e).”) (collecting cases); Washington v. Zickefoose, No.
12–303, 2012 WL 5247623, at *3 (D.N.J. Oct. 24, 2012)
(collecting cases) (finding no protected liberty interest under
§ 3621(e)).
D. Discrimination
The Court notes that Petitioner makes references to
discrimination in his letters.
Specifically, in his letter
dated June 15, 2015 he writes, “[t]he discrimination does
continue.
And it becomes much more flagrant.” (ECF No. 6).
He
later explains that he believes the BOP Psychology Department
has a goal of “helping minorities over all others.” (Letter 2,
June 25, 2015, ECF No. 8).
Presumably, Petitioner is not a
minority and believes he was deemed ineligible for RDAP on that
basis.
However, as set forth above, this Court concludes that the
BOP’s individual determination with respect to Petitioner’s
eligibility for RDAP was not arbitrary, capricious, or an abuse
of discretion.
Accordingly, any claim that Petitioner was
denied eligibility for discriminatory reasons is unsupported and
will be denied.
Further, as set forth above, Petitioner does
not have a liberty interest in participation in RDAP or in the
potential reduction of sentence which may result from successful
completion.
Therefore, any claim Petitioner has that he was
21
denied due process — i.e., discriminated against — in the
eligibility determination procedure is denied because, without a
liberty interest, Petitioner is not entitled to the minimum
procedures required by the Due Process Clause. See Wolff v.
McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2963 41 L.Ed.2d
935 (1974).
E. Equal Protection
Finally, in construing the Petition liberally, as this
Court must, see Hunterson, 308 F.3d at 243, it is conceivable
that Petitioner means to assert an equal protection claim.
Specifically, in his letters dated June 15, 2015 and June 25,
2015, he refers to his right to be “treated equally” and to a
“ban on racial preferences.” (ECF Nos. 6, 8).
The Equal Protection Clause guarantees that “all persons
similarly circumstanced shall be treated alike.” Plyler v. Doe,
457 U.S. 202, 216, 102 S. Ct. 2382, 72 L.Ed.2d 786 (1982); see
also Vacco v. Quill, 521 U.S. 793, 799, 117 S. Ct. 2293, 138
L.Ed.2d 834 (1997) (“The Equal Protection Clause commands that
no State shall deny to any person within its jurisdiction the
equal protection of the laws”).
The Clause does not, however,
require “things which are different in fact or opinion to be
treated in law as though they were the same.” Plyler, 457 U.S.
at 216 (quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S. Ct.
879, 84 L.Ed. 1124 (1940)).
In other words, the Clause “is not
22
a command that all persons be treated alike but, rather, ‘a
direction that all persons similarly situated should be treated
alike.’” Artway v. Attorney General of New Jersey, 81 F.3d 1235,
1267 (3d Cir. 1996) (quoting City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L.Ed.2d 313
(1985)).
A petitioner who alleges an equal protection violation has
the burden of proving the existence of purposeful discrimination
that had a discriminatory effect on him. See McCleskey v. Kemp,
481 U.S. 279, 292, 107 S. Ct. 1756, 95 L.Ed.2d 262 (1987);
Whitus v. Georgia, 385 U.S. 545, 550, 87 S. Ct. 643, 17 L.Ed.2d
599 (1967).
“Thus, to prevail under the Equal Protection
Clause, [Petitioner] must prove that the decisionmakers in his
case acted with discriminatory purpose.” McCleskey, 481 U.S. at
292 (emphasis in original).
“[I]f a law neither burdens a
fundamental right nor targets a suspect class, [the Court] will
uphold the legislative classification so long as it bears a
rational relation to some legitimate end.” Romer v. Evans, 517
U.S. 620, 631, 116 S. Ct. 1620, 134 L.Ed.2d 855 (1996).
Here, Petitioner has not alleged that he is a member of a
suspect class.
Further, as discussed above, Petitioner does not
have a liberty interest in participation in RDAP or in the
potential reduction of sentence which may result from successful
completion.
“Therefore, in order to succeed on an equal
23
protection claim, Petitioner must establish that: (1) he was
treated differently than other prisoners in his circumstances;
and (2) such unequal treatment was the result of intentional or
purposeful discrimination.” Woodson v. Zickefoose, No. 11-292,
2011 WL 4352319, at *6 (D.N.J. Sept. 16, 2011) (citations
omitted).
Petitioner alleges that that prison officials have been
selecting inmates for RDAP “based on their own needs for meeting
their own annual goals . . . of helping minorities over all
others.” (Letter 1-2, ECF No. 8); see also (Ex. to Pet. 4, ECF
No. 1-1) (alleging that “Fort Dix has chosen, or been directed,
to select those inmates for RDAP that reach the BOP’s goals . .
.”).
Petitioner further asserts that another inmate at Fort Dix
— who, like Petitioner, had no evidence in his PSR regarding
substance abuse — was selected for the RDAP program based on the
fact that he is a minority and, thus, his participation in the
program would help to serve the BOP’s annual goals of helping
minorities. (Letter 2, ECF No. 8).
Accordingly, Petitioner has
arguably set forth a claim that he was intentionally treated
differently than other similarly situated inmates.
However, even accepting Petitioner’s allegations as true,
Petitioner is not entitled to relief in this habeas petition.
Specifically, as discussed above, Petitioner is not entitled to
participation in the RDAP program because he had no
24
documentation of substance abuse in his central file or other
collateral sources.
Therefore, even assuming an equal
protection violation occurred, Petitioner remains ineligible for
RDAP participation, and habeas relief in the form of reversing
an agency action is not warranted.
In the event Petitioner
wishes to pursue alternative relief for any alleged equal
protection violation, he may do so in a civil rights action
filed pursuant to Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d
619 (1971).
The Court makes no determination as to the merits
or timeliness of such an action.
V.
CONCLUSION
For the reasons set forth above, Petitioner’s request for a
writ of habeas corpus will be denied.
An appropriate Order will
follow.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: September 8, 2016
At Camden, New Jersey
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