BRILEY v. LYNCH et al

Filing 31

OPINION. Signed by Judge Renee Marie Bumb on 4/21/2017. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JAY BONANZA BRILEY,
Petitioner,
v.
MR. ORTIZ, Warden,
FCI Fort Dix,
Respondent,1

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Civ. Action No. 16-5571 (RMB)

OPINION

BUMB, District Judge
On

September

(“Briley”),

13,

incarcerated

2016,

Petitioner

in

Fort

FCI

Jay

Dix,

Bonanza

in

Fort

Briley

Dix,

New

Jersey, filed a petition for writ of habeas corpus under 28
U.S.C. § 2241.

(Pet., ECF No. 1.)

Briley contends that Federal

Bureau of Prisons (“BOP”) staff improperly renewed a “Greater
Security
applied

Management
a

“Public

Variable”
Safety

(“MGTV”)

Factor”

and

(“PSF”)

later
to

his

improperly
security

classification, precluding him from transferring to a minimum1

The proper respondent to a petition under 28 U.S.C. § 2241 is
the petitioner’s immediate custodian. Rumsfeld v. Padilla, 542
U.S. 426, 434-35 (2004).
Therefore, the Court will terminate
the improper respondents from this action:
Loretta Lynch, Mr.
Kane, Director of Bureau of Prisons; Mr. Robinson, Unit Manager;
and Mr. Olsen, Case Manager.
The Court has also corrected the
spelling of the warden’s name in the caption, as provided in the
Answer.

security prison camp.
immediate

release

to

(Id., ¶¶14, 16, 19, 25-27.)
a

residential

reentry

Briley seeks

center

(“RRC”),

participation in the Veteran Outreach Treatment Program, and the
Veterans Reentry Program.

(Pet., ECF No. 1, ¶33.)

He further

seeks one year early release based on his RDAP treatment.
¶34.)2
examples

(Id.,

Briley filed five Addenda to his petition, submitting
of

the

BOP

removing

other

inmates’

classification

barriers to permit transfer to a camp, and establishing Briley’s
eligibility

for

Veterans (HCRV).”

participation

in

“Healthcare

for

Reentry

(Addenda, ECF Nos. 3, 5, 6, 7, 10.)

Respondent filed Respondent’s Answer to Petition for a Writ
of Habeas Corpus, opposing all relief.

(Resp.’s Answer to Pet.

for a Writ of Habeas Corpus (“Answer”) ECF No. 12.)

Briley

filed a reply, followed by a motion for summary judgment (ECF
No. 14), two motions to accept new evidence (ECF Nos. 18, 19),
and two motions to compel. (ECF Nos. 21, 26.)3

The first motion

2

In his petition, Briley also sought money damages based on
deprivation of transfer to a camp.
(Pet., ECF No. 1, ¶35-36.)
By Order dated September 23, 2016, this Court determined that
Briley’s petition for habeas relief could proceed, but he must
file a separate civil rights action, after exhausting his
administrative remedies, if he intends to seek money damages for
a constitutional violation. (ECF No. 2 at 2.) Briley responded
by letter to the Court, asking whether he must also exhaust his
administrative remedies for his § 2241 petition, and if so,
would the Court hold the petition in abeyance. (ECF No. 4.) The
Court addresses this request in Section II.C.2 below.
3

On April 17, 2017, Briley submitted a letter requesting that
the Court hear his motions entered at Docket Entry Numbers 14,
2

to compel is for discovery4 (ECF No. 21), and the second motion
is

to

compel

Briley’s
5800.17.

U.S.

Presentence
(ECF

No.

Probation

Officer

Report,
26.)

pursuant

The

new

Kelly
to

evidence

Smihal

to

amend

Program

Statement

Briley

submitted

includes the Part B Response to Remedy No. 886002-F2; a request
to the Court for a copy of a filed motion (ECF No. 18); a copy
of Program Statement 5800.17; and an inmate request to staff
dated April 4, 2015.

(ECF No. 19.)

For the reasons discussed below, the Court will dismiss the
habeas petition and the pending motions.
21, and 25, on May 1, 2017, the date set for hearing by the
Court. (ECF No. 28.) Briley misconstrued the docket entries as
setting a hearing date.
Each docket entry states “Unless
otherwise directed by the Court, this motion will be decided on
the papers and no appearances are required.”
The Court will
decide these motions on the papers, without a hearing, pursuant
to Federal Rule of Civil Procedure 78.
The next day, Briley
submitted an application for writ of habeas corpus ad
testificandum, asking that he be brought before the Court to
present his case. (ECF No. 30.) An evidentiary hearing is not
required in this matter, and it will be decided on the papers.
See Opara v. U.S., 423 F. App’x 116 (3d Cir. 2011) (evidentiary
hearing was unnecessary where decision did not turn on factual
disputes).
4

In his motion to compel, Briley alleged it had been more than
thirty days since he issued subpoenas to the National Park
Service, and he had not received a response.
(ECF No. 21.)
Rule 6(a), (b) of the Rules Governing Section 2254 Cases in the
United States District Courts, applicable to proceedings under
28 U.S.C. § 2241 through Rule 1(b), provides that discovery
under the Federal Rules of Civil Procedure in a habeas proceeding
may only be had upon leave of Court, after good cause is shown.
Briley did not seek leave of Court to issue subpoenas to the
National Park Service. In any event, the motion is dismissed as
moot because Briley did not raise a cognizable habeas claim that
is ripe for review.
3

I.

BACKGROUND
On

January

12,

2012,

Briley

was

arrested

following

an

altercation with United States Park Police. United States v.
Briley, 770 F.3d 267, 269-70 (4th Cir. 2014) (“Briley I”).

The

Fourth Circuit Court of Appeals stated the relevant facts:
During the fracas on the driver’s side of
the car, Briley kicked [Officer] Brancato in
the abdomen. Brancato then tried to loosen
Briley's position in the vehicle by striking
him on his side. As the effort to subdue
Briley continued, Briley placed another
kick—this
time,
harder—into
Brancato’s
abdomen.
Brancato
later
suffered
from
impairment of his pancreas and lost his
gallbladder

Briley I, 770 F.3d at 270.
of

Virginia

charged

Briley

A grand jury in the Eastern District
with

three

counts

of

assaulting,

obstructing and impeding a federal officer, in violation of 18
U.S.C. § 111, and one count of disorderly conduct – obscene
acts, in violation of 36 C.F.R. § 2.34(a)(2).
convicted by a jury on all four counts.

Id.

Briley was

Id. at 271.

On October 22, 2013, the district court sentenced Briley to
78 months in prison, three years of supervised release, and
restitution.

(Declaration of Tara Moran (“Moran Decl.”), ECF

No. 3, Ex. 1 at 2); Briley I, 770 F.3d at 271.

Following a

hearing at which expert medical testimony was presented, the
4

sentencing court determined that “the trauma from Briley’s kicks
had caused Brancato’s pancreatitis, which in turn had compelled
the removal of his gallbladder.” Id.
Fourth Circuit affirmed.

Briley appealed, and the

Id. at 277.

In September 2014, while Briley was incarcerated at FCI
Loretto, he filed a habeas petition under 28 U.S.C. § 2241 in
the Western District of Pennsylvania.

Briley v. Holder, Civ.

Action No. 3:14-cv-0193, 2015 WL 926560, at *1 (W.D. Pa 2015)
(“Briley II”).
Greater

Briley challenged the BOP’s application of a

Security

Management

Variable

to

his

security

classification and sought an order that would allow him to serve
his sentence on home confinement or at a federal prison camp.
Id.

The district court

dismissed Briley’s habeas petition for lack of subject matter
jurisdiction.

Id.

Briley appealed, and on January 14, 2016, a panel of the
Third Circuit issued a non-precedential decision affirming the
district court’s decision.

Briley v. Att. Gen. U.S., 632 F.

App’x 84, 85 (3d Cir. 2016) (“Briley III”).
“Briley’s

challenge

to

his

custody

The court held that

classification

is

not

cognizable in a § 2241 petition because he does not challenge
the basic fact or duration of his imprisonment, which is the
‘essence of habeas.’”

Id. (citing Preiser v. Rodriguez, 411

U.S. 475, 484 (1973)).

The court further held that “prisoners
5

have no constitutional right to a particular classification.”
Id.

at

85

(citing

Moody

v.

Daggett,

429

U.S.

78,

88

n.

9

(1976)).
Briley
motions.

filed

a

number

of

unsuccessful

post-conviction

United States v. Briley, 631 F. App’x 156, 156 (4th

Cir. 2016) (per curiam) (affirming denial of motion for new
trial and denying certificate of appealability with respect to §
2255 motion); Briley v. Lynch, Civ. Action No. 16-4274 (RMB),
2016 WL 4107691, at *2 (D.N.J. Aug. 1, 2016) (dismissing § 2241
petition for lack of jurisdiction where petitioner sought to
challenge his conviction after denial of his § 2255 motion).
If Briley receives all available good conduct time, his
projected release date is December 31, 2018.
1 at 2.)

(Moran Decl., Ex.

Inmates are eligible for twelve months of placement in

a residential reentry center (or “RRC”), and they are typically
considered

for

RRC

placement

projected release dates. (Id.)
answer,

Briley

release date.

was

more

17

to

19

months

before

their

At the time Respondent filed its

than

two

years

from

his

projected

(Declaration of Frederick Olsen (“Olsen Decl.”),

ECF No. 12-2, ¶7.)

Therefore, he had not been considered for

RRC placement, nor was he eligible for immediate transfer to
such a facility. (Id.)

Furthermore, Briley never participated

in the BOP’s Residential Drug Abuse Program (“RDAP”); therefore

6

he is ineligible for the one-year early release incentive under
18 U.S.C. § 3621(e). (Id., ¶8; Attachment 4 at 1.)
II.

DISCUSSION
A.

BOP Custody Classification Policies

The BOP has the authority to designate the place of an
inmate’s

confinement,

and

may

transfer

facility to another at any time.

a

prisoner

from

one

18 U.S.C. § 3621(b).

In

making placement determinations, the BOP must consider, among
other factors, the resources of the facility contemplated, the
nature and circumstances of the offense, and the characteristics
of the prisoner.

18 U.S.C. § 3621(b)(1), (2), & (3).

BOP institutions are classified into five security levels:
minimum, low, medium, high, and administrative.
Statement

5100.08,

Classification,

Inmate
Ch.

Security
1

http://www.bop.gov/policy.)

at

BOP Program

Designation
1-3,

and

Custody

available

at

Before designating an inmate to an

institution, the BOP assesses the inmate’s particular security
and program needs and certain administrative factors.
2.)

(Id. at

The BOP then designates an inmate to an institution based

on these factors. (Id. at 3.)
To

determine

the

level

of

security

a

particular

inmate

requires, the BOP calculates a security point score for the
inmate

and

assigns

any

“Public Safety Factors.”

applicable

“Management

(Id. at 2-3.)
7

Variables”

and

A Management Variable

“is required when placement has been made and/or maintained at
an

institution

level

inconsistent

with

the

inmate’s

security

score — a score which may not completely/accurately reflect his
or her security needs.”
Management

Variable

to

Id., Ch. 2 at 3.
an

inmate

Application of a

requires

the

review

and

approval of BOP’s Designations and Sentence Computation Center
(“DSCC”)

Administrator.

(Id.,

Ch.

5,

at

1.)

A

Management

Variable of “Greater Security” may be applied to an inmate when
BOP

staff

determines

that

the

inmate

represents

security risk than the assigned security level.

a

greater

(Id., Ch. 5 at

5.)
Public Safety Factors provide relevant factual information
regarding the inmate’s offense, sentence, criminal history, or
institutional behavior that requires additional security measure
to ensure safety of the public. (Id., Ch. 5 at 7.)
whose

current

confinement

falls

within

the

An inmate

Greatest

Severity

range, according to the Offense Severity Scale,5 will be housed
in at least a low-security-level institution unless the PSF has
been waived.

(Id.)

In determining the severity of the inmate’s

offense, BOP staff must consider all offense behavior, not only
the current offense.

(Id., Ch. 6, at 3-4.)

Management

and

Variables

Public

5

The “Offense Severity Scale”
Program Statement 5100.08.
8

Safety

is

After assignment of

Factors,

located

in

inmates

Appendix

are

A

to

assigned to an appropriate institution in accordance with the
custody level classification.

(Id., at 16.)

In this case, the DSCC applied a MGTV to Briley based on
his offense of conviction, assaulting, obstructing and impeding
a federal officer.

(Olsen Decl. ¶3; Attachment 1 at 1); Briley

II, 2015 WL 926560, at *1.

Therefore, Briley was designated to

a low-security institution (FCI Loretto in Pennsylvania), rather
than a minimum-security camp. (Olsen Decl., ¶3.)
While
submitted
another

designated
a

request

low-security

to

to

FCI

renew

Loretto,
the

institution,

MGTV,
based

Briley’s
and
on

unit

transfer

the

Decl.,

Attachment

1

approved the transfer.

at

1.)

The

DSCC

continued

him

results

Special Investigatory Services (“SIS”) investigation.
the

team
to

of

a

(Olsen
MGTV

and

(Id.)

In November 2015, Briley was transferred from FCI Loretto
to FCI Fort Dix, another low-security facility. (Olsen Decl. ¶4;
Attachment 2 at 1.) During his program review at FCI Fort Dix,
his unit team realized that Briley’s instant offense conduct
fell within the Greatest Severity range on the Offense Severity
Scale in Program Statement 5100.08, which required BOP staff to
apply a “Greatest Severity” PSF. (Id., ¶5.)
The

Greatest

Severity

Scale

lists

“[a]ssault

–

serious

bodily injury intended or permanent or life threatening bodily
injury resulting” as one of the offenses for which a Greatest
9

Severity Public Safety Factor must be applied.
App. A, at 1.

P.S. 5100.08,

According to Briley’s Presentence Investigation

Report (“PSR”), two officers sustained serious bodily injury due
to his actions; one required a feeding tube and ultimately had
his gallbladder removed as a result of the assault.
Decl. ¶6; see also Briley I, 770 F.3d at 270-71.

(Olsen

The Unit Team

submitted a request to the DSCC to apply a MGTV. (Olsen, Decl.,
¶6.)

Because the MGTV was no longer necessary in light of the

PSF request,6 BOP staff requested removal of Briley’s MGTV. (Id.)
The DSCC approved application of the PSF, and removed the MGTV.
(Id.)
B.

Exhaustion of Administrative Remedies

The BOP has a four-step process for federal inmates to
exhaust administrative remedies.
542.10

et

seq.

An

inmate

(Moran Decl. ¶3); 28 C.F.R. §

must

first

resolve his dispute with prison staff.
this

fails,

the

inmate

may

submit

attempt

to

informally

28 C.F.R. § 542.13.
an

administrative

If

remedy

request to the warden of his institution, within twenty days of
the

event

or

decision

underlying

the

request.

28

C.F.R.

§

542.14(a), (c).
If the administrative remedy request is denied, the inmate
may

file

an

appeal

with

the

appropriate

6

Regional

Director,

A PSF has no expiration date and will remain with an inmate
throughout his incarceration unless waived by the DSCC. (Olsen
Decl., ¶6.)
10

within twenty days of the date of the warden’s response. 28
C.F.R. § 542.15(a).

If the Regional Director denies the appeal,

the inmate may appeal that decision to BOP’s Central Office,
General

Counsel,

within

thirty

Regional Director’s response.

days

Id.

from

the

date

of

the

The administrative remedy

process is not fully exhausted until an inmate’s final appeal is
considered by the Central Office.
C.

Id.

Analysis
1.

Claims challenging security classification
not cognizable under 28 U.S.C. § 2241.

are

Briley previously filed a petition for a writ of habeas
corpus

under

Pennsylvania,

28

U.S.C.

“seeking

(“BOP”)

determination

Variable

should

be

§
to

2241

lack

of

that

a

applied

to

jurisdiction,

the

challenge

his

and

Western

the

Greater

Briley III, 632 F. App’x at 84.
for

in

District

Bureau

of

Security

custody

of

Prison's
Management

classification.”

The district court dismissed
a

panel

affirmed in a non-precedential opinion.

of
Id.

the

Third

The Third Circuit

explained:
We agree with the District Court that
Briley's
challenge
to
his
custody
classification is not cognizable in a § 2241
petition because he does not challenge the
basic fact or duration of his imprisonment,
which is the “essence of habeas.” See
Preiser v. Rodriguez, 411 U.S. 475, 484, 93
S.Ct. 1827, 36 L.Ed.2d 439 (1973). Nor does
Briley's claim challenge the “execution” of
his
sentence
within
the
narrow
11

Circuit

jurisdictional ambit described in Woodall v.
Federal Bureau of Prisons, 432 F.3d 235, 241
(3d Cir.2005). Woodall held that a prisoner
could bring a § 2241 petition challenging a
BOP regulation that limited placement in a
Community Corrections Center. We noted that
“[c]arrying out a sentence through detention
in [such a facility was] very different than
carrying out a sentence in an ordinary penal
institution.” Id. at 243. Specifically, we
determined that Woodall sought something
well
“more
than
a
simple
transfer,”
observing that his claims “crossed[ed] the
line beyond a challenge to, for example, a
garden variety prison transfer.” Id. Here,
we agree with the District Court that
Briley's claims are much more akin to the
“garden variety” custody levels that Woodall
indicated were excluded from the scope of §
2241. Relatedly, we note, prisoners have no
constitutional
right
to
a
particular
classification. Moody v. Daggett, 429 U.S.
78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236
(1976). Thus, the District Court correctly
dismissed Briley's § 2241 petition. See
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir.
2002)
(“W]hen
the
challenge
is
to
a
condition of confinement such that a finding
in plaintiff's favor would not alter his
sentence or undo his conviction, [a civil
rights action] is appropriate.”).
Id.
Accordingly,

Briley’s

present

claims

that

the

Federal

Bureau of Prisons (“BOP”) staff improperly renewed a MGTV and
improperly

applied

a

PSF

to

his

security

classification,

precluding him from transferring to a minimum-security prison
camp, are not cognizable under 28 U.S.C. § 2241.
Violante,

654

F.

App’x

49,

51

(3d

Cir.

2016)

See Mundo–

(“neither

BOP

policy nor the Due Process Clause gives a prisoner a liberty

12

interest in a particular housing location or custody level while
under the jurisdiction of correctional authorities”) (citations
omitted); Briley III, 632 F. App’x at 85 (noting that inmates
have

no

constitutional

classification);

right

Anguiano-Sanchez

to
v.

a

particular

Zickefoose,

No.

security
12-0477

(RMB), 2013 WL 356012, at *3 (D.N.J. Jan. 29, 2013) (same); Ford
v. Hughes, No. 11-7029 (RMB), 2012 WL 3228714, at *3 (D.N.J.
Aug. 3, 2012) (same).

Briley’s claims challenging the renewal

of the MGTV and PSF are dismissed.
2.

A

Briley’s
Failure
to
Exhaust
Administrative
Remedies
of
RRC
and
RDAP
Claims
Warrants
Dismissal Without Prejudice

federal

inmate

must

first

exhaust

his

administrative

remedies before seeking habeas relief pursuant to 28 U.S.C. §
2241.

Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760-62

(3d Cir. 1996).

The Third Circuit requires exhaustion for three

reasons:
(1) allowing the appropriate agency to
develop a factual record and apply its
expertise facilitates judicial review; (2)
permitting agencies to grant the relief
requested conserves judicial resources; and
(3) providing agencies the opportunity to
correct
their
own
errors
fosters
administrative autonomy.
Id. at 761-62 (citations omitted).
Respondent asserts Briley has not sought an administrative
remedy for his claims concerning RRC placement or early release

13

eligibility under RDAP.

(Moran Decl., ¶6.)

Briley concedes

that he failed to exhaust administrative remedies, and seeks an
abeyance of the petition.
An

abeyance

is

See supra n. 2.

inappropriate

because

it

frustrates

the

purposes of conserving judicial time when an agency might grant
the relief sought through the administrative remedy procedure.
Therefore,

the

Court

will

concerning

RRC

placement

dismiss
and

RDAP

the

unexhausted

early

release

claims
without

prejudice to Briley raising his claims after he has exhausted
his remedies.
III.

CONCLUSION
For the reasons discussed above, Briley’s application for a

writ of habeas corpus ad testificandum is denied (ECF No. 30);
Briley’s

petition

under

28

U.S.C.

§

2241

is

dismissed;

his

claims challenging the BOP’s renewal of a MGTV and assignment of
a PSF are dismissed for lack of jurisdiction; his claims for RRC
placement and early release for RDAP treatment are dismissed
without prejudice.

Briley’s motion to compel discovery (ECF No.

21), motion to compel amendment of his PSR (ECF No. 26), motions
to accept new evidence (18, 19), and motion for summary judgment
(ECF No. 14) are dismissed as moot.

See Brown v. Philadelphia

Housing Authority, 350 F.3d 338, 343 (3d Cir. 2003) (“[m]ootness
has two aspects: (1) the issues presented are no longer live, or

14

(2) the parties lack a cognizable interest in the outcome”)
(citations omitted).

An appropriate Order follows.
Dated: April 21, 2017.
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge

15