BRILEY v. FARASHAHI et al

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 4/27/2017. (rtm, )

NOT FOR PUBLICATION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. 17-1750 (RMB)

OPINION

BUMB, District Judge
Petitioner, Jay Bonanza Briley, presently incarcerated in
FCI Fort Dix, in Fort Dix, New Jersey, filed a petition for writ
of habeas corpus under 28 U.S.C. § 2241, on March 15, 2017,
seeking immediate release to home confinement under the Second
Chance Act, and money damages. (Pet., ECF No. 1.)

Petitioner

has established his financial eligibility for IFP status, and
his IFP application (ECF No. 1-4) will be granted.

Rule 4 of

the Rules Governing Section 2254 Cases in the United States

1

The proper respondent to a petition under 28 U.S.C. § 2241 is
the petitioner’s immediate custodian, in this case, Warden
Ortiz.
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).
Therefore, the Court terminates Mary R. Farashahi, Chief U.S.
Probation Officer, as a respondent to this petition.

District Courts, applicable to 28 U.S.C. § 2241 through Rule 1,
scope of the rules, provides, in relevant part:
The
judge
must
promptly
examine
[the
petition].
If it plainly appears from the
petition and any attached exhibits that the
petitioner is not entitled to relief in the
district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.
If
the
petition
is
not
dismissed,
the
judge
must
order
the
respondent to file an answer, motion, or
other response within a fixed time, or to
take other action the judge may order.
For the reasons discussed below, the Court will dismiss the
petition.
I.

BACKGROUND
Petitioner filed this action as a petition for writ of

habeas corpus under 28 U.S.C. § 2241.

(Pet., ¶11.)

Petitioner,

however, also asserts jurisdiction under 42 U.S.C. § 1983, and 5
U.S.C. § 552a.

(Id., ¶¶12, 33.)

Petitioner seeks immediate

release in order to participate in a veteran’s reentry program.
(Id., ¶¶35-36.)
Petitioner alleges the following facts in support of his
petition for habeas relief.

Petitioner’s Inmate File contains

an inaccurate Presentence Report (“PSR”).

(Pet., ¶2.)

The

alleged inaccuracies in the PSR are the medical conclusions that
the police officers whom Petitioner assaulted suffered serious
bodily

injury

as

a

result.

(Id.,

¶2(A),

(B)).

Petitioner

submitted evidence suggesting the officers suffered preexisting
2

conditions, and Petitioner did not cause the serious injuries
alleged.

(Id.)

On January 15, 2015, Petitioner asked Case Manager Bagley
to submit evidence [presumably to the U.S. Probation Office] of
his inaccurate PSR.
was

transferred

to

(Pet., ¶20.)
FCI

Fort

Dix,

In November 2015, Petitioner
based

on

a

“bogus

alleged

accusation and threat, the bogus information was affirmed in SIS
Investigation

Report.”

(Id.,

¶24.)

On

November

19,

2015,

Petitioner notified his new case manager, Mr. Olsen, of his
erroneous PSR in his Case File.

(Id., ¶25.)

Petitioner contends Olsen violated Bureau of Prisons (“BOP”
Program
2

Statement

5800.17(11)(c)2

Available at BOP.gov/policy.

“by

not

instructing

the

PS 5800.17(11)(c) provides, in pertinent part:

For
example,
if
an
inmate
challenges
information in the PSR, staff instruct the
inmate to prepare a written challenge, which
staff then forward to the appropriate U.S.
Probation Office (USPO). USPO procedures,
however, do not allow changes or addendums
to be made to the Presentence Investigation
Report after sentencing, since it is a court
document.
If the USPO subsequently reports that the
challenged
information,
or
some
part
thereof, is not accurate, staff attach the
inmate’s inquiry and the USPO response to
the challenged document. Staff file this
information in the applicable section of the
Inmate Central File, and also make a
notation on the Inmate Activity Record (BPA0381) to ensure that future decisions
affecting the inmate are not based on
discredited information.
3

Plaintiff

to

challenge

the

inaccuracies

of

his

Pre

Sentence

[Report],” and not sending documentation to a U.S. Probation
Officer to correct the PSR.

(Id., ¶26.)

At Petitioner’s Team Meeting with Olsen in June 2016, the
BOP removed “Plaintiff’s Management Variable”3 and requested to
have Plaintiff transferred to FCI Fort Dix Camp Facility but
failed to correct the PSR.
placed

a

Public

Safety

(Id., ¶27.)
Factor4

One week later, Olsen

(“PSF”)

on

Petitioner

and

increased his severity level to “max.,” precluding his transfer
to a camp facility.

(Id., ¶28.)

Petitioner met with Mr. Olsen and Case Manager Ms. Willis
to discuss his informal remedy request on February 23, 2017.
(Id.,

¶29.)

Petitioner

presented

the

exculpatory

evidence

regarding his PSR, which he had notified Olsen of in November
2015.

(Id., ¶¶30-31.)
Due

to

determined

the
that

alleged

inaccuracies

Petitioner

required

in
a

the
low

PSR,

the

security

BOP
level

placement, which prevented him from receiving camp custody or
home confinement with treatment in the D.C. veteran’s program.
3

“A Management Variable is required when placement has been made
and/or maintained at an institution level inconsistent with the
inmate’s scored security level.” BOP P.S. 5100.08, Ch. 5 at 1.
4

“A Public Safety Factor (PSF) is relevant factual information
regarding the inmate’s current offense, sentence, criminal
history or institutional behavior that requires additional
security measures be employed to ensure the safety and
protection of the public.” Id. at 7.
4

(Id., ¶¶7C, 19, 35.)

Petitioner also asserts the BOP violated

the Privacy Act, 5 U.S.C. §§ 552a(d),(e)(5) and (g), by failing
to keep an accurate PSR Report, contained in his Privacy/Case
file.
II.

(Id., ¶¶12-15.)

DISCUSSION
28 U.S.C. § 2241 provides, in relevant part:
(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions . . .
(c) The writ of habeas corpus shall not
extend to a prisoner unless—
. . .
(3) He is in custody in violation of
the Constitution or laws or treaties of
the United States; . . .

Damages are not available in a habeas proceeding under 28 U.S.C.
§ 2241.

See Descamps v. Warden Lewisburg, USP, 617 F. App’x

110,

(3d

111

Cir.

2015)

(per

curiam)

(the

proper

means

for

seeking damages or injunctive relief is a civil rights action).
If

Petitioner

wishes

to

seek

damages

for

a

constitutional

violation, he must file a separate civil rights action under
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics,5 403 U.S. 388 (1971).

5

Jurisdiction is improper under 42 U.S.C. § 1983 because the
alleged defendants are not state actors, they are federal
actors. See Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d
5

A.

The Privacy Act

“The Privacy Act [5 U.S.C. § 552a et seq.] ‘governs the
government's

collection

and

dissemination

of

information

and

maintenance of its records [and] generally allows individuals to
gain

access

to

government

records

correction of inaccurate records.’”

on

them

and

to

request

Kates v. King, 487 F. App’x

704, 706 (3d Cir. 2012) (quoting Perry v. Bureau of Prisons, 371
F.3d 1304, 1304–05 (11th Cir. 2004) (quoting Gowan v. United
States Dep't of the Air Force, 148 F.3d 1182, 1187 (10th Cir.
1998).

An

agency

when

statute.

individual
it

fails

may
to

bring
comply

a

civil

with

any

action

against

provision

of

the
the

Id. (citing 5 U.S.C. § 552a(g)(1).)
[T]he BOP has exempted its central record
system, where an inmate's PSI is located,
from
the
Act's
relevant
enforcement
provisions. See 28 C.F.R. § 16.97(a); see
also Fendler v. United States Bureau of
Prisons, 846 F.2d 550, 553–54 (9th Cir.
1988). Additionally, United States Probation
Offices, because they are units of the
federal courts, see 18 U.S.C. § 3602, are
not subject to the Privacy Act. See 5 U.S.C.
§ 551(1)(B); Washington Legal Found. v.
United States Sentencing Comm'n, 17 F.3d
1446, 1449 (D.C.Cir.1994).

Id. at 706.

Therefore, Petitioner cannot challenge his custody

under the Privacy Act, nor can he bring a civil action for
damages.
Cir. 2001) (a Bivens action is the federal equivalent of a §
1983 action against state actors).
6

B.

Due Process

A protected liberty interest under the Fourteenth Amendment
may arise from the Constitution or it may be created by law or
regulation.

Williams v. Sec. Pennsylvania Dep’t Corr., 848 F.3d

549, 558-59 (3d Cir. 2017).

“To rise to the level of a liberty

interest, the right alleged must confer ‘freedom from restraint
which

...

imposes

atypical

and

significant

hardship

on

the

inmate in relation to the ordinary incidents of prison life.’”
Id. at 559 (quoting Griffin v. Vaughn, 112 F.3d 703, 708 (3d
Cir. 1997) (emphasis added) (quoting Sandin v. Conner, 515 U.S.
472, 484 (1995)).
Clause

gives

a

“[Neither BOP policy nor the Due Process

prisoner

a

liberty

interest

in

a

particular

housing location or custody level while under the jurisdiction
of correctional authorities.”

Mundo–Violante, 654 F. App’x 49,

51 (3d Cir. 2016) (citations omitted); Briley v. Att. Gen. U.S.,
632 F. App’x 84, 85 (3d Cir. 2016) (noting that inmates have no
constitutional right to a particular security classification).
Therefore, Petitioner does not state a cognizable Due Process
claim that he was deprived of

transfer to a camp, based on

violation of BOP Program Statement 5800.17(11)(c), failing to
assist him with a request to the U.S. Probation Office to change
his PSR.
C.

The Second Chance Act
7

Petitioner

seeks

relief

of

home

confinement.

In

the

petition, he alleges:
“The
BOP
Program
Statement
P5310.17
Psychology Services Manual state[s] "Branch
is responsible for provision of communitybased
treatment
services
for
inmates
transitioning through Residential Reentry
Centers and Home Confinement; the Veteran's
"Healthcare for Reentry Veterans Program"
(HCRV) provides that for the Plaintiff”
(Pet., ¶16.)

Petitioner attached his eligibility letter for

“Healthcare Reentry Veterans Program.”
24.)

(Pet., ECF No. 1-3 at

The letter states, in part:
As Mr. Briley enters 8 months and less on
his current sentence, he can further be
assisted by the Healthcare For Reentry
Veterans
(HCRV)
Program.
This
program
provides educational support for veterans
who are getting ready to be released back
into the community. Also, a reentry plan
will be generated as services do not begin
until Mr. Briley's actual release from
custody.

(Id.)

The Court notes Petitioner’s projected release date is

December 31, 2018.

(Pet., ECF No. 1-3 at 33.)

He has more than

eight months remaining on his current sentence.
The Second Chance Act, 18 U.S.C. § 3624(c), provides:
(c) Prerelease custody.-(1) In general.--The Director of the
Bureau of Prisons shall, to the extent
practicable, ensure that a prisoner
serving a term of imprisonment spends a
portion of the final months of that
term (not to exceed 12 months), under
conditions
that
will
afford
that
8

prisoner a reasonable opportunity to
adjust to and prepare for the reentry
of that prisoner into the community.
Such conditions may include a community
correctional facility.
(2) Home confinement authority.--The
authority under this subsection may be
used to place a prisoner in home
confinement for the shorter of 10
percent of the term of imprisonment of
that prisoner or 6 months.

“The Second Chance Act of 2007 . . . increases a federal
prisoner's eligibility for pre-release placement in a halfway
house from 6 to 12 months, and requires the Bureau of Prisons to
make an individual determination that ensures that the placement
is ‘of sufficient duration to provide the greatest likelihood of
successful

reintegration

into

the

community.’”

Wilson

v.

Strada, 474 F. App’x 46, 46-47 (3d Cir. 2012) (quoting 18 U.S.C.
§ 3624(c)(6)(C)).

28 C.F.R. § 570.22 provides:

Inmates will be considered for pre-release
community confinement in a manner consistent
with 18 U.S.C. section 3621(b), determined
on an individual basis, and of sufficient
duration to provide the greatest likelihood
of
successful
reintegration
into
the
community, within the time-frames set forth
in this part.
Attached

to

the

petition

is

an

Response” dated December 4, 2016.

“Inmate

Request

Staff

(Pet., ECF No. 1-3 at 33.)

The response states:
This is in response to your Inmate Request
to
Staff,
dated
November
23,
2016.
9

to

Specifically, you request a recommendation
for an early release to home confinement in
order to participate in the Veterans Justice
Outreach Program.
A review of this matter reveals you have a
projected release date of December 31, 2018,
via Good Conduct Time Release. Pursuant to
the "Second Chance of 2007", Unit Team staff
is to review each inmate for pre-release
Residential Reentry Center/Home Confinement
placement 17-19 months before the inmate's
projected release date. Based on the time
frames given in the "Second Chance Act of
2007," you are currently not in the time
frame to be reviewed for home confinement
placement. Your Unit Team will continue to
monitor this matter during your scheduled
program reviews.
(Id.)
This exhibit, attached to the petition, establishes that
Petitioner’s

request

for

pre-release

home

confinement

(or

residential reentry center placement) was premature, and that
consideration of his request was only delayed, not denied based
on his PSR.

18 U.S.C. § 3624(c) requires only that inmates are

given consideration, under the factors described in § 3621(b),
to serve a maximum of twelve months of their prison terms in a
community correctional facility or a maximum of six months or
ten

percent

of

the

term,

whichever

is

shorter,

in

home

confinement.
The

BOP’s

decision

not

to

consider

Petitioner’s

request

until 17 to 19 months before his projected release date does not
preclude compliance with the statute.
10

See Sacora v. Thomas, 628

F.3d 1059, 1067-68 (9th Cir. 2010) (“after the April 14 [2008
BOP] Memorandum each inmate's pre-release placement review was
to take place somewhere between 17 and 19 months before the
inmate's release, instead of the 11 to 13 months provided for in
Program Statement 7310.04. . . . This change affords each inmate
the opportunity to be placed in a RRC for the full 12 months the
statute authorizes . . .”) Therefore, Petitioner is not entitled
to habeas relief based on the BOP’s response to his request for
residential reentry center placement or home confinement.
III. CONCLUSION
For

the

Petitioner’s

reasons
petition

discussed
for

a

above,

writ

of

the

habeas

Court

dismisses

corpus

under

U.S.C. § 2241.
An appropriate Order follows.

s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated: April 27, 2017

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