GREEN v. KIRBY et al

Filing 22

OPINION. Signed by Judge Renee Marie Bumb on 5/31/2017. (dmr)

NOT FOR PUBLICATION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

MARK GREEN,
Petitioner,
v.

MARK KIRBY,
Respondent.

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Civil Action No. 16-5608(RMB)

OPINION

BUMB, U.S. District Judge
On September 15, 2016, Petitioner, an inmate incarcerated in
the Federal Correctional Institution in Fairton, New Jersey, filed
a petition under 28 U.S.C. § 2241, challenging the Bureau Of
Prison’s (“BOP”) decision to revoke Petitioner’s early release
date pursuant to 18 U.S.C. § 3621(e).

(Pet., ECF No. 1 at 6.)

Respondent filed an answer and response in opposition to the
petition (“Answer”).

(ECF Nos. 12.) 1

Petitioner filed a motion

for temporary restraining order (“Mot. for TRO”), seeking an early
determination of the issue presented in his habeas petition. (Mot.
for TRO, ECF No. 5.)

For the reasons discussed below, the Court

1

The Court granted Respondent’s motion to file Exhibits D, E, F,
G, H, I and K to the Declaration of Brian Redondo under seal.
(Order, ECF No. 16.)
1

denies

the

habeas

petition,

and

dismisses

the

motion

for

a

temporary restraining order as moot.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is a federal inmate who was incarcerated at FCI

Fairton when he filed this petition.

(Mem. of Law in Supp. of

Pet. for Habeas Corpus Relief Under 28 U.S.C. § 2241 (“Petr’s
Mem.”), ECF No. 1-3 at 2.)

On September 12, 2011, Petitioner was

sentenced in the United States District Court for the Eastern
District of Pennsylvania to a 139-month term of imprisonment
followed by a three-year term of supervised release for conspiracy
and identity theft.

(Id.)

He has a projected Good Conduct Time

(“GCT”) release date of April 7, 2018, and a conditional release
date of July 30, 2017, pursuant to 18 U.S.C. § 3621(e), if he
successfully completes all requirements of the BOP Residential
Drug Abuse Program (“RDAP.”)

(Answer, ECF No. 12 at 3, citing

Declaration of Alisha Gallagher (“Gallagher Decl.”), ECF No. 121, Exhibit 1.)

Petitioner arrived at FCI-Fairton on September 1, 2015, where
he was assigned to complete the unit-based component of the RDAP.
2

(Redondo Decl., ECF No. 12-2 at 92; ECF No. 14 at 23.)

3

4

II.

DISCUSSION
A. RDAP

5

The

BOP

operates

a

drug

abuse

treatment

program

that

identifies inmates in need of substance abuse treatment. 28 C.F.R.
§ 550.50 et seq.; BOP Program Statement 5330.11. (Redondo Decl.,
ECF No. 12-2 at 4-5.)

To successfully complete the RDAP, inmates

must complete a minimum of 500 hours and six months of unit-based
treatment; follow-up services pending transfer to community based
treatment; and community-based treatment (TDAT).

(Redondo Decl.,

ECF No. 12-2 at 17.)
B. Early Release Procedures Under 18 U.S.C. § 3621(e)
18 U.S.C. § 3621(e)(2)(B), provides that the Director of the
BOP may reduce the period a prisoner convicted of a nonviolent
offense

remains

in

custody

after

the

prisoner

successfully

completes a treatment program, but the reduction may not be more
than one year from the term the prisoner must otherwise serve.
Pursuant to 28 C.F.R. § 550.55(a), effective May 26, 2016:
(a) Eligibility. Inmates may be eligible for
early release by a period not to exceed twelve
months if they:
. . .
2) Successfully complete a RDAP, as
described in § 550.53, during their
current commitment.
Upon a qualified inmate’s entry into RDAP, the Drug Abuse
Program Coordinator (“DAPC”), or designee, will within 15 working
days, forward a Notice of § 3621(e) Date form (BP-A0764) to BOP’s
Designation and Sentencing Computation Center (DSCC), which is

6

responsible for the inmate’s sentence computation and release date
under 18 U.S.C. § 3621(e)(2)(B).

(Redondo Decl., ECF No. 12-2 at

75.) Within 15 working days of the DSCC staff receiving the Notice
of § 3621(e) Date form, computation staff will enter the estimated
completion date and recalculate the inmate’s sentence.

(Id.)

III. Argument
A. Exhaustion
Petitioner

challenges

the

BOP’s

revocation

of

his

early

release date under the Due Process and Equal Protection Clauses of
the Fourteenth Amendment.
Petitioner

asserts

Dr.

(Petr’s Mem., ECF No. 1-3.)

Redondo

arbitrarily

revoked

First,

his

early

release date “without any warning or any right for him to contest
the arbitrary decision.”

(Id. at 6.)

Petitioner contends there

is no authority in 28 U.S.C. § 550.53 permitting the RDAP Program
Coordinator to revoke an early release date, thus “the whole
statute

violates

the

Procedural

Due

Process

Fourteenth Amendment to the United States.”

Clause

(Id.)

of

the

Petitioner

claims that before his early release date may be revoked, due
process requires that he receive a statements of reasons, a right
to present witnesses before an impartial tribunal, a preliminary
and final revocation hearing, and notice and opportunity to be
heard.

(Id.)

Second, Petitioner contends he was deprived of substantive
due process because he “had a settled expectation of being released
7

on 10/13/16,” contingent only upon completion of 500 hours.
at 7.)

(Id.

Third, Petitioner contends the BOP’s action of promising

a particular early release date and revoking it without any process
shocks the conscience in violation of substantive due process.
(Petr’s Mem., ECF No. 1-3 at 8.)

Fourth, Petitioner asserts he

was denied due process because Dr. Redondo was not impartial; he
acted as the charging officer, the investigating officer, and the
adjudicating officer.

(Id. at 12.)

Fifth, Petitioner claims Dr. Redondo’s revocation of his
early release without due process violated the Equal Protection
Clause of the Fourteenth Amendment.

(Id.)

Petitioner argues that

within RDAP there are two groups of inmates who are similarly
situated and yet treated differently, inmates who are eligible for
early release after RDAP completion, and inmates who are not
eligible for early release after RDAP completion.

(Id. at 14.)

Inmates who are eligible for early release upon completion are
treated more harshly for minor infractions.
Sixth,

Petitioner

violation based on race.

asserts

an

Equal

(Id. at 16.)

(Id.)
Protection

Clause

Petitioner alleges there

is only one non-white RDAP staff member, and white inmates get
preferential

treatment.

(Id.)

African-American

inmates

are

punished “at a rate of (15) times worse than that of a white peer.”
(Id.)
inmates

Petitioner cites DTS Lowe’s behavior of allowing white
to

give

feedback

against
8

African-Americans

but

not

allowing African-Americans to give feedback against white inmates.
(Id. at 17.) Petitioner offers examples of white inmates not being
punished for the same infractions as African-Americans.

(Petr’s

Mem. 1-3 at 17-18.)
Seventh, Petitioner asserts he was retaliated against for
writing and distributing a voluntary survey requesting inmate
feedback about the RDAP Program, and for filing a grievance against
RDAP staff on August 26, 2016.

(Id. at 20.)

Respondent contends that Petitioner has not exhausted his
administrative remedies with respect to his challenge to the
Bureau’s RDAP placement modification, nor has he demonstrated
cause as to why exhaustion should be excused.
at

16.)

Petitioner

asks

the

Court

to

(Answer, ECF No. 12

excuse

him

from

the

exhaustion requirement because if he was forced to wait until he
exhausted his remedies, he would lose the benefit of the early
release date that he seeks here.

(Petr’s Mem., ECF No. 1-3 at 1.)

He is requesting to have his early release date of October 13,
2016 reinstated.

(Id. at 5.)

Although there is no statutory exhaustion requirement in 28
U.S.C. § 2241, 2 “[a] federal prisoner ordinarily may not seek
habeas

corpus

relief

until

administrative remedies.”

he

has

exhausted

all

available

Bradshaw v. Carlson, 682 F.2d 1050,

2

Griffin v. Ebbert, 640 F. App’x 181, 183 n. 2 (3d Cir. 2016)
(citing Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000).
9

1052 (3d. Cir. 1981) (citations omitted).

The exhaustion doctrine

serves three goals: 1) facilitating judicial review by development
of

a

factual

record

in

the

appropriate

agency

applying

its

expertise; 2) conservation of judicial time if the agency grants
relief; and 3) respect for administrative autonomy by giving the
agency an opportunity to correct its own errors.

Id.

Exhaustion is not required when it would not serve any of the
three basic goals.

Id. (citing U.S. ex rel. Marrero v. Warden,

Lewisburg Penitentiary, 483 F.2d 656, 659 (3d Cir. 1973)).

Thus,

exhaustion is not required when the issue “involves only statutory
construction” because there is no need for an agency to develop a
factual record.

Id.

The second and third goals of the exhaustion

doctrine are not served where the Respondent consistently opposed
the petitioner’s statutory construction.

(Id.)

The Bureau has established a three-tiered system whereby a
federal prisoner may seek formal review of any aspect of his
imprisonment.

28 C.F.R. §§ 542.10-542.19 (1997).

For the first

step, “an inmate shall . . . present an issue of concern informally
to staff, and staff shall attempt to informally resolve the issue
before an inmate submits a Request for Administrative Remedy.”
C.F.R.

§

542.13(a).

Next,

he

may

file

“a

formal

28

written

Administrative Remedy Request, on the appropriate form (BP-9),
[within] 20 calendar days following the date on which the basis

10

for the Request occurred.”

28 C.F.R. § 542.14(a).

twenty (20) days to respond.

The Warden has

28 C.F.R. § 542.18.

An inmate who is not satisfied with the Warden’s response may
submit an appeal, on the appropriate form (BP-10), to the Regional
Director within twenty (20) calendar days of the date the Warden
signed the BP-9 response.

28 C.F.R. § 542.15(a).

If the inmate

is not satisfied with the Regional Director’s response, he or she
may submit an appeal, on the appropriate form (BP-11), to the
General Counsel within thirty (30) calendar days from the date of
the Regional Director’s response.

Id.

The Regional Director has

thirty (30) days to respond, and the General Counsel has forty
(40) days.

28 C.F.R. § 542.18.

Where exhaustion is required, a prisoner's procedural default
in pursuing administrative remedies bars judicial review of a
subsequent

habeas

corpus

petition,

absent

the

prisoner's

demonstration of cause and prejudice for the default.
Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996.)
cause,

the

petitioner

must

“show

that

some

Moscato v

To establish

objective

factor

external to the defense impeded [the prisoner's] efforts to comply
with the ... procedural rule.”
479 (1986).

Murray v. Carrier, 477 U.S. 478,

With regard to the prejudice requirement, the habeas

petitioner must prove that he was denied fundamental fairness.
Id. at 494.

11

Computerized indexes of all administrative appeals filed by
inmates are maintained by the Regional and Central offices.
C.F.R. § 542.19.

Petitioner has filed 295 administrative remedies

while housed in BOP custody.
32.)

28

(Gallagher Decl., ECF No. 12-1 at

Administrative Remedy Case No. 875307 and Case No. 875313

are the only remedies that pertain to the claims he now asserts in
this petition, and Petitioner failed to exhaust his remedies with
respect to these claims prior to filing his petition.

(Gallagher

Decl., ECF No. 12-1, ¶¶6-7.)
On September 2, 2016, Petitioner submitted a Request for
Administrative Remedy (Case No. 857307), wherein he alleged the
RDAP procedures violated BOP policy. (Gallagher Decl., ECF No. 121 at 2, ¶9.)

On September 8, 2016, this case was rejected because

Petitioner submitted too many continuation pages with his request.
He was instructed that he could correct the technical error and
resubmit his request within 5 days. (Id.)
On September 19, 2016, Petitioner resubmitted his Request for
Administrative Remedy, Case No. 875307.

(Id., ¶10.)

On September

30, 2016, the Warden at FCI Fairton denied his request.

(Id.)

Petitioner was instructed that he could file an appeal with the
Northeast Regional Office within 20 days. (Id.)
On October 19, 2016, Petitioner appealed the Warden’s denial
to the Northeast Regional Office.

(Id., ¶11.)

This appeal was

denied on November 16, 2016, and Petitioner was instructed that he
12

could file an appeal with the Bureau of Prisons’ Central Office
within 30 days of the date of the response.

(Id.)

In the meantime, on September 2, 2016, Petitioner submitted
a second administrative remedy (Case No. 875313) to the Warden.
(Id., ¶6.)

He contended the rules for the RDAP were improperly

made and alleged the RDAP staff were engaging in discriminatory
practices.

(Id.)

On September 8, 2016, Case No. 875313 was

rejected because Petitioner submitted too many continuation pages
with his request.

(Id.)

He was instructed that he could correct

the technical error and resubmit his request within 5 days.
On

September

19,

2016,

Petitioner

resubmitted

(Id.)
his

administrative remedy in Case No. 857513. (Id., ¶7.) On September
30, 2016, the Warden denied his remedy and instructed Petitioner
that he could file an appeal with the Northeast Regional Office
within 20 days.

(Id.)

On October 19, 2016, Petitioner appealed Case No. 857513 to
the Northeast Regional Office.

(Id., ¶8.) On November 16, 2016,

Petitioner’s appeal was denied, and he was instructed that he could
file an appeal with the Bureau of Prisons’ Central Office within
30 days of the date of the response. (Id.) As of November 18, 2016,
Petitioner had not filed a Central Office Administrative Appeal
for Case Number 857513 or Case Number 875037. (Id., ¶12.)
Petitioner’s provisional completion date for the unit-based
portion of RDAP treatment was October 12, 2016, but he was not due
13

for release on October 13, 2016, because he was still required to
complete community-based treatment for 120 days.
ECF No. 14. at 40.)

(Redondo Decl.,

Petitioner’s earliest possible release date

under § 3621(e) was February 10, 2017, 120 days after his projected
unit-based completion date of October 12, 2016.

Therefore, when

he filed this habeas petition on September 15, 2016, Petitioner
had time to complete the final step of the administrative remedy
process by appealing to the Central Office, 3 and if relief was
denied, he could still file a habeas petition seeking release on
February 10, 2017.
Petitioner

has

not

asserted

an

external

impediment

prevented him from meeting the exhaustion requirement.

that

Therefore,

the Court will dismiss the petition as procedurally defaulted.

In

the alternative, as discussed below, the Court would deny the
petition on the merits.
B.

Merits of Petitioner’s Claims
1.

Whether the decision for Petitioner to repeat Phase
II of treatment was arbitrary

Petitioner asserts Dr. Redondo arbitrarily revoked his early
release date “without any warning or any right for him to contest
the arbitrary decision.”

(Petr’s Mem., ECF No. 1-3 at 6.)

3

First,

An appeal with the Bureau of Prisons’ Central Office is due
within 30 days of the date of the response from the Regional
Director. 28 C.F.R. § 542.15.
The Central Office response is
due within 40 days, but it may request an extension of 20 days.
28 C.F.R. § 542.18.
14

the Court addresses Petitioner’s allegation that Dr. Redondo’s
decision was arbitrary.
Congress provided that “the Bureau of Prisons shall, subject
to

the

availability

of

appropriations,

provide

residential

substance abuse treatment . . . for all eligible prisoners . . .”
18 U.S.C. § 3621(e).

For inmates who successfully complete RDAP,

the BOP may reduce the inmate’s sentence by up to one year.

18

U.S.C. § 3621(e)(2)(B).
The Bureau’s authority to reduce an inmate’s sentence for
completion of RDAP falls under 18 U.S.C. § 3621.

18 U.S.C. § 3625

states that the judicial review provisions of the APA “do not apply
to the making of any determination, decision, or order under this
subchapter,” which includes § 3621.

Thus, courts have held that

they lack jurisdiction to consider challenges to RDAP early release
decisions. See Thorndike v. Hollingsworth, Civ. No. 15-2014 (NLH),
2016 WL 4705443, at *5 (D.N.J. Sept. 8, 2016) (collecting cases).
The Third Circuit, however, has not determined the applicability
of § 3625 to discretionary decisions to revoke an RDAP early
release date.

Id. at 6.

Therefore, this Court will apply the

APA’s arbitrary, capricious or abuse of discretion standard of
review in 5 U.S.C. § 706(2)(A).

See id., at **6-7 (“assum[ing],

without deciding, that [the court] has jurisdiction to review the
BOP’s individualized determination for “abuse of discretion.”)

15

Dr. Redondo provided many examples of Petitioner’s difficulty
in treatment in support his decision to have Petitioner repeat
Phase

II

of

2.

the

program.

Due Process Claims

Petitioner contends there is no authority in 28 U.S.C. §
550.53 permitting the RDAP Program Coordinator to revoke a release
date, thus “the whole statute violates the Procedural Due Process
Clause of the Fourteenth Amendment to the United States.”
Mem., ECF No. 1-3 at 6.)

(Petr’s

Petitioner claims that before his release

date may be revoked, due process requires that he receive a
statements of reasons, a right to present witnesses before an
impartial tribunal, a preliminary and final revocation hearing,
and notice and opportunity to be heard.

(Id.) Petitioner also

asserts he was denied due process because Dr. Redondo was not
impartial; he acted as the charging officer, the investigating
officer, and the adjudicating officer.

(Id. at 12.)

Second, Petitioner contends he was deprived of substantive
due process because he “had a settled expectation of being released
16

on 10/13/16,” contingent only upon completion of 500 hours.
at 7.)

(Id.

Third, Petitioner contends the BOP’s action of promising

a particular release date and revoking it without any process
shocks the conscience in violation of substantive due process.
(Id. at 8.)
“The

interests

protected

by

the

Due

Process

Clause

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.’”

Douvos v. Quintana, 382 F.

App’x 119, 122 (3d Cir. 2009) (quoting Sandin v. Conner, 515 U.S.
472, 484 (1995)). “[E]xpulsion from a rehabilitative program for
a violation of its rules and regulations “falls within the expected
perimeters of the sentence imposed by a court of law.”
there

is

no

due

process

right,

substantive

or

Id.

Thus,

procedural,

associated with the RDAP Program Coordinator’s authority to revoke
a release date due to failure to complete RDAP.
2.

Equal Protection Claims

Petitioner

claims

Dr.

Redondo’s

revocation

of

his

early

release date violated the Equal Protection Clause of the Fourteenth
Amendment.

(Petr’s Mem., ECF No. 1-3 at 8.)

First, Petitioner

alleges that within RDAP there are two groups of inmates who are
similarly situated and yet treated differently, inmates who are
eligible for early release after RDAP completion, and inmates who
are not eligible for early release after RDAP completion.
17

(Id. at

14.)

Inmates who are eligible for early release are treated more

harshly for minor infractions.
Second,

Petitioner

(Id.)

asserts

Protection Clause based on race.
16.)

a

violation

of

the

Equal

(Petr’s Mem., ECF No. 1-3 at

Petitioner alleges there is only one non-white RDAP staff

member, and whites inmates get preferential treatment.

(Id.)

African-American inmates are punished “at a rate of (15) times
worse” than white inmates.

(Id.)

It is the Fifth Amendment that protects the right of federal
prisoners to equal protection under the law.

See e.g. Mack v.

Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016).

Fifth

Amendment equal protection claims are analyzed in the same manner
as claims under the Fourteenth Amendment.

Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 217 (1995) (citations omitted).

The

purpose of the Fourteenth Amendment Equal Protection Clause is “to
secure

every

person

within

the

State's

jurisdiction

against

intentional and arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper execution through
duly constituted agents.”

PG Publ’g Co. v. Aichele, 705 F.3d 91,

114 (3d Cir. 2013) (quoting Vill. of Willowbrook v. Olech, 528
U.S. 562, 564, (2000) (quoting Sioux City Bridge Co. v. Dakota
Cnty., 260 U.S. 441, 445 (1923)).
A district court may only extend the writ of habeas corpus to
an inmate if he demonstrates that “[h]e is in [Bureau] custody in
18

violation of the Constitution or laws of the United States.” 28
U.S.C. § 2241(c)(3).

Only punishment that affects Petitioner’s

release date can be challenged in a habeas claim on the basis that
his custody is in violation of the U.S. Constitution, federal law
or treaties. Inmates who are not eligible for early release after
RDAP completion are not similarly situated to Petitioner in this
respect.

Therefore, this claim is not cognizable.

Petitioner also raised a race-based equal protection claim.
He alleges that African American RDAP participants are punished
more frequently and more harshly than white RDAP participants
because all but one RDAP staff member is white.

Petitioner has

not alleged that the decision to have him repeat Phase II of the
unit-based portion of RDAP was based on racial discrimination.
Only a claim that his early release date was revoked based on
racial

discrimination

states

legality of his custody.

a

cognizable

challenge

to

the

The Court will deny Petitioner’s race-

based Equal Protection Claim for habeas relief, but Petitioner may
pursue a Bivens claim for equal protection violations that did not
lengthen his term of imprisonment.
3.

Retaliation Claims

On August 31, 2016, DTS Jennifer Pearson wrote an incident
report because Petitioner missed a call out appointment.
Mem., ECF No. 1-3 at 20.)

(Petr’s

Petitioner claims the real reason for

the incident report was that he filed a grievance against RDAP
19

staff on August 26, 2016.

(Id.)

He also alleges that he was

retaliated against for writing and distributing a voluntary survey
requesting inmate feedback about the RDAP Program.

(Id.)

Respondent counters that Petitioner’s retaliation claim fails
because he has not endured or suffered from any adverse action in
connection with the incident report.
40.)

(Resp’s Brief, ECF No. 12 at

Furthermore, the issuance of an incident report after the

commission

of

a

prohibited

act

legitimate penological interest.

is

reasonably

related

to

a

(Id.)

Because this is a habeas claim, Petitioner must show that he
is in custody in violation of the U.S. Constitution or laws or
treaties of the United States.

Petitioner does not allege he was

sanctioned with loss of good conduct time based on the incident
report.

Thus, he does not state a cognizable habeas claim.

See

Castillo v. FBOP FCI Fort Dix, 221 F. App’x 172, 175 (3d Cir. 2007)
(disciplinary sanctions that do not affect the execution of a
criminal sentence are not cognizable under § 2241.)

The Court

will, however, address Petitioner’s claim that his early release
date was revoked in retaliation for his free speech.
Petitioner stated that in July 2016, he began handing out a
voluntary survey that he created about the RDAP program to other
inmates.

(Petr’s Mem., ECF No. 1-3 at 2.)

The survey sought

opinions from the inmates about how the RDAP program was being
conducted.

(Id.)

Petitioner gave the completed surveys to Dr.
20

Redondo.

(Id.)

In all of the survey responses, participants

complained about various aspects of the program, particularly the
pull-up system and the confronting and levelling sessions.

(Id.)

Petitioner had been challenging the practice of allowing senior
inmates in the program to have authority over other inmates,
asserting that it violated the Eighth Amendment.

(Id. at 3.)

Petitioner alleges that soon after he conducted the survey
and complained about aspects of the program, his early release
date was revoked.

(Id.)

He concludes the timing of these events

establishes a causal connection between his free speech and the
revocation of his early release date.

(Id.) Respondent counters

that it may prevail on a retaliation claim by proving that it would
have made the same decision absent the protected conduct, for
reasons reasonably related to a legitimate penological interest.
(Resp’s Brief, ECF No. 12 at 38.)

21

Therefore,

the

record

rebuts

the

claim

that

Petitioner was forced to repeat Phase II of the unit-based RDAP
treatment

in

retaliation

for

the

survey

complaints about how the program was run.

22

he

created

and

his

III. CONCLUSION
Petitioner procedurally defaulted his habeas claims because
he

failed

to

complete

the

administrative

remedy

process

by

appealing his grievances to the General Counsel in the Central
Office.

In the alternative, the Court would deny Petitioner’s

claims on the merits.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

23