BARATOV v. KANE et al
Filing
11
OPINION. Signed by Judge Renee Marie Bumb on 5/24/2018. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ALBERT MIKHAYLOVICH BARATOV,
Plaintiff,
v.
THOMAS R. KANE et al.,
Defendants.
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Civ. Action No. 17-3775 (RMB)
OPINION
APPEARANCES:
ALBERT MIKHAYLOVICH BARATOV
FCI Fort Dix
East: P.O. Box 2000
Fort Dix, New Jersey 08640
Plaintiff, pro se
JESSICA O’NEILL
Assistant U.S. Attorney
Office of the U.S. Attorney
District of New Jersey
401 Market Street, 4th floor
P.O. Box 2098
Camden, New Jersey 08101
On behalf of Defendants Thomas R. Kane and Rand Beers
BUMB, District Judge
Plaintiff Albert Mikhaylovich Baratov, an inmate confined in
the Federal Correctional Institution in Fort Dix, New Jersey (“FCI
Fort Dix”) filed this action on May 23, 2017, seeking declaratory
and injunctive relief to have an ICE detainer that was lodged against
him removed to allow his consideration for placement in a residential
reentry center (“RRC”). (Compl., ECF No. 1.) This matter is now before
the Court upon the motion to dismiss by Defendants Thomas R. Kane
and Rand Beers (“Federal Defendants”) (Fed. Defs’ Mot. to Dismiss,
ECF No. 7; “Fed. Defs’ Brief,” ECF no. 7-1); and Plaintiff’s
Memorandum of Law in Opposition to Defendants’ Motion to Dismiss
(“Pl’s Mem.,” ECF Nos. 8 and 9). This matter is also before the Court
for screening pursuant to 28 U.S.C. § 1915A. The standard for
dismissal for failure to state a claim pursuant to § 1915A(b) is the
same as the standard under Federal Rule of Civil Procedure 12(b)(6).
Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).
On February 12, 2018, the Federal Defendants submitted to this
Court the Declaration of Mary McCollum, stating that Plaintiff was
transferred to FCI Allenwood where he can participate in a hearing
on his ICE detainer through the Institution Hearing Program (“IHP”).
(Fed. Defs’ Letter, ECF No. 10; Declaration of Mary McCollum, ECF
No. 10-1.) The parties have not notified the Court of a decision made
in the IHP proceedings.
I.
BACKGROUND
Plaintiff alleged the following in his complaint. Plaintiff was
born in the United Soviet Socialist Republic State of Uzbekistan in
1975. (Compl., ECF No. 1, ¶¶17-18.) In 1991, at age 15, Plaintiff
immigrated to the United States with his mother, without his own
passport. (Id., ¶¶19-21.)
On November 8, 2006, an ICE Field Office
Director issued an Order of Supervision stating that Plaintiff was
ordered removed on September 18, 2001. (Id., ¶¶23-24.)
On July 1, 2015, in the United States District Court, Southern
District of New York, Plaintiff pled guilty to one count of conspiracy
to commit bank fraud, in violation of 18 U.S.C. § 1349. (Id., ¶25.)
Plaintiff was sentenced, on January 8, 2016, to a 48-month prison
term followed by a three-year term of supervised release. (Compl.,
ECF No. 1, Exhibits 3 and 4.) Plaintiff’s projected release date is
October 1, 2019. (Id., ¶29, and Exhibit 4.)
Because Plaintiff is subject to a final order of removal, ICE
placed a detainer on him on August 1, 2016. (Id., ¶¶30-32.) The BOP
designated Plaintiff with the “Deportable Alien” Public Safety
Factor (“PSF”), which requires that he be housed in at least a low
security level institution. (Compl., ECF No. 1, ¶¶39-41.) Plaintiff
is
stateless
because
the
Republic
of
Uzbekistan
refuses
to
acknowledge him as a citizen of the Republic, and the Russian
Federation declined to grant him citizenship. (Compl., ECF No. 1,
¶56.) Plaintiff cannot be removed to Uzbekistan. (Id., ¶97.)
The BOP honors all ICE detainer requests. (Id., ¶¶73-75.) ICE’s
detainer request, seeking notification of Plaintiff’s release date
and his detention for 48 hours after his scheduled release, was not
accompanied by a warrant. (Id., ¶¶75-76.) The ICE detainer excludes
Plaintiff from RRC placement consideration. (Id., ¶91.)
In Count One of his complaint, Plaintiff asserts he has a
statutory right under 18 U.S.C. § 3624(c) to be individually
considered for RRC placement. (Id., ¶¶104-08.) The BOP policy of
delaying confirmation of ICE detainers until three months prior to
the inmate’s release date denies Plaintiff his statutory right to
individual consideration for RRC placement. (Id., ¶¶107-08.) ICE’s
incorrect designation of Plaintiff as a citizen of Uzbekistan impacts
his right to be considered for RRC placement. (Id., ¶¶116-17.)
For relief, Plaintiff seeks declaratory judgment under 28
U.S.C. § 2201(a) of the following:
A. That 18 U.S.C. § 3624, as amended by the
Second Chance Act, confers upon the Plaintiff
a right to be considered, individually, for
placement in an appropriate BOP residential
reentry center.
B. The the BOP's current policy of blindly and
automatically accepting and lodging detainers
against an inmate, specifically the plaintiff,
coupled with its policy of seeking confirmation
of such detainers only within 90 days of the
Plaintiff's release, acts as a constructive
violation of the Plaintiff's rights under 18
U.S.C. 3624.
C. That the BOP does not have the discretion to
NOT perform an individual consideration of the
Plaintiff for placement in an appropriate RRC.
D. The BOP does have the discretion to decline
to honor a request for voluntary action,
received from ICE.
E. That the Plaintiff was born in the former
Soviet State of Uzbekistan.
F. The Republic of Uzbekistan is an entirely
separate governmental entity from the former
Soviet State of Uzbekistan.
G. That the Plaintiff is not a citizen of the
Republic Of Uzbekistan.
H. The Plaintiff has no citizenship or standing
in the Russian
Federation.
I. The Plaintiff is stateless.
(Compl., ECF No. 1 at 22.)
Additionally, Plaintiff seeks an injunction pursuant to Federal
Rule of Civil Procedure 65, ordering the BOP to disregard the ICE
detainer lodged against him and to consider an individual RRC
placement determination under 18 U.S.C. § 3624. (Compl., ECF No. 1
at 23.) Plaintiff contends he is not subject to the Prison Litigation
Reform Act, and he is not required to exhaust the BOP’s administrative
remedy program. (Compl., ¶¶101, 102.)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the
Federal Defendants seek dismissal of the complaint for failure to
state a claim upon which relief may be granted. (Fed. Defs’ Brief,
ECF No. 7-1 at 8.) First, the Federal Defendants contend the complaint
should
be
dismissed
because
all
claims
stem
from
the
BOP’s
determination that Plaintiff fits the category of “Deportable
Alien,” and inmates do not have a protected liberty interest in their
custody classification or placement of confinement. (Id. at 9-10.)
Furthermore, the Federal Defendants assert that even if Plaintiff
will not be removed from the United States in the future, he is not
a U.S. Citizen, which is the key factor the BOP considers in applying
the Deportable Alien PSF. (Id. at 10.)
Second, the Federal Defendants submit that 18 U.S.C. § 3624(c)
provides the BOP with directions on pre-release custody for inmates,
including release to a residential reentry center.
(Defs’ Brief,
ECF No. 7-1 at 11.) The statute, however, does not create a protected
interest or guarantee a right to release to a particular facility,
nor does it permit an inmate to sue for removal of a PSF. (Id.)
Third, the Federal Defendants assert Plaintiff does not state
a claim against ICE for “Improper Declaration of Citizenship,” as
alleged in Count Two of the complaint. (Id. at 12.) The Federal
Defendants note Plaintiff is confined pursuant to his lawful
conviction, and neither ICE nor the Executive Office for Immigration
Review
(“EOIR”)
have
made
a
determination
that
Plaintiff’s
deportation is warranted. (Id. at 12, n. 3.) Because Plaintiff is
not a United States citizen, and that is the basis for his Deportable
Alien PSF, there is no constitutional violation for misidentifying
his citizenship. (Id. at 12.)
Fourth, the Federal Defendants maintain that the BOP’s decision
to designate him as a Deportable Alien is the type of agency decision
that is exempt from review under the Administrative Procedure Act,
5 U.S.C. § 706(2)(A). (Id. at 13.)
18 U.S.C. § 3625 exempts the BOP
from review of security level determinations. (Fed. Defs’ Brief, ECF
No. 7-1 at 13.)
Finally, the Federal Defendants contend that Plaintiff is not
entitled to injunctive relief directing the BOP to disregard the ICE
detainer. (Id. at 14.) Plaintiff cannot demonstrate the likelihood
of success on the merits of his claims, and is thus not entitled to
preliminary injunctive relief under Fed. R. Civ. P. 65. (Id. at 15.)
Moreover, Plaintiff’s claim for injunctive relief is not ripe because
Plaintiff was not eligible to be considered for RRC placement when
he filed the complaint, nor has he been denied RRC placement. (Id.)
II.
LEGAL STANDARD
A party may assert by motion the defense of failure to state
a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).
“‘[A] pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.’”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976) (internal quotation marks omitted in
original). “[A] court must accept as true all of the allegations
contained in a complaint. ... Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[O]nly
a complaint that states a plausible claim for relief survives a motion
to dismiss.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id.
III. DISCUSSION
The Declaratory Judgment Act, 28 U.S.C. § 2201, merely defines
a remedy; it does not provide an independent basis for subject-matter
jurisdiction. Allen v. DeBello, 861 F.3d 433, 444 (3d Cir. 2017).
Therefore, Plaintiff must provide another basis for jurisdiction in
this Court.
The complaint does not state a claim for violation of a federal
constitutional right. “[T]he assignment of a deportable alien PSF,
in itself, does not implicate the Due Process Clause….” Becerra v.
Miner, 248 F. App’x 368, 370 (3d Cir. 2007) (per curiam).
“‘As long
as the conditions or degree of confinement to which the prisoner is
subjected is within the sentence imposed upon him and is not otherwise
violative of the Constitution, the Due Process Clause does not in
itself subject an inmate's treatment by prison authorities to
judicial oversight.’” Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir.
2002) (citing Asquith v. Dep’t of Corr., 186 F.3d 407, 410 (3d Cir.
1999) (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)). See
Mundo-Violante v. Warden Loretto FCI, 654 F. App’x 49, 52 (3d Cir.
2016) (“the assignment of a Deportable Alien PSF, in itself, does
not implicate the Due Process Clause…”)
Furthermore,
Plaintiff
does
not
have
cognizable
liberty
interest in an anticipated transfer to a community correctional
center (“CCC”) or RRC. See Powell v. Weiss, 757 F.3d 338, 344 (3d
Cir. 2014) (finding prisoner did not have an independent due process
liberty interest in pre-release statute and associated transfer to
CCC, which was rescinded). Moreover, loss of pre-release status is
not an “atypical and significant hardship” compared to the ordinary
incidents of prison life that creates a due process liberty interest.
Id. (citing Sandin v. Conner, 515 U.S. 472 (1995)). Thus, Plaintiff
has not stated a Bivens claim for violation of his liberty interest
under the Due Process Clause of the Fifth Amendment.
In Count One, Plaintiff alleges he has a statutory right to
individual consideration for RRC placement. 18 U.S.C. § 3624(c)(1),
(4) provide:
(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 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.
. . .
(4) No limitations.--Nothing in this subsection
shall be construed to limit or restrict the
authority of the Director of the Bureau of
Prisons under section 3621.
Under 18 U.S.C. § 3621(b), the BOP designates the place for a
prisoner’s imprisonment, taking into account: (1) the resources of
the facility contemplated; (2) the nature and circumstances of the
offense; (3) the history and characteristics of the prisoner; (4)
any statement by the court that imposed the sentence; and (5) any
pertinent policy statement issued by the Sentencing Commission
pursuant to section 994(a)(2) of title 28.
The BOP classifies inmates according to their required level
of security and supervision and their program needs, pursuant to BOP
Program Statement 5100.08, Inmate Security Designation and Custody
Classification. An inmate who is not a U.S. citizen is designated
with a Public Safety Factor of “Deportable Alien.” Id., Ch. 5, page
9, H. According to BOP Program Statement 7310.04(10)(b), inmates with
a Deportable Alien PSF do not qualify for RRC placement. The
Deportable Alien PSF may be removed when ICE or the EOIR determines
that deportation proceedings are unwarranted or if there is a finding
not to deport at the completion of deportation proceedings. BOP
Program Statement 5100.08, Ch. 5, page 9, H.
A BOP Program Statement is entitled to “some deference,” if it
is a permissible construction of a statute. Reno v. Koray, 515 U.S.
50, 61 (1995); but see Roussos v. Menifee, 122 F.3d 159, 163-64 (3d
Cir. 1997) (BOP Program Statement must be rejected if it is
inconsistent with clear language of the statute.)
A prisoner, however, has a statutory right under the Second
Chance Act, 18 U.S.C. § 3624, for individual consideration of the
factors described in 18 U.S.C. § 3621(b) for pre-release placement
in a CCC or RRC. Woodall v. Federal Bureau of Prisons, 432 F.3d 235,
250-51 (3d Cir. 2005) (“that the BOP may assign a prisoner to a CCC
does not mean that it must.”) “Courts enforce Article III's
case-or-controversy
requirement
through
several
justiciability
doctrines, one of which is ripeness.” Porter-Bey v. Bledsoe, 456 F.
App'x 109, 110 (3d Cir. 2012). “A claim is not ripe for adjudication
if it rests on some contingent future event.” Id.
When Plaintiff filed the instant complaint on May 23, 2017, his
protected release date of October 1, 2019 was more than sixteen months
in the future. 18 U.S.C. § 3624(c)(1) provides that, to the extent
practicable, a prisoner should spend the final months of a term of
imprisonment, not to exceed twelve months, under conditions that
afford him a reasonable opportunity to adjust to reentry in the
community. Plaintiff’s complaint was premature because he still had
the opportunity for a 12-month RRC placement, if otherwise eligible.
Moreover, as in Porter-Bey, Plaintiff has not yet received a
final RRC placement decision pursuant to 18 U.S.C. §§ 3624, 3621(b).
Under the circumstances, a declaratory judgment would constitute “an
opinion advising what the law would be upon a hypothetical state of
facts.” Presbytery of New Jersey of Orthodox Presbyterian Church v.
Florio, 440 F.3d 1454 (3d Cir. 1994) (quoting Step–Saver Data
Systems, Inc. v. Wyse Technology, 912 F.2d 643, 649 (3d Cir. 1990)
(quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)).
According to the February 12, 2018 Declaration of Mary McCollum,
Case Manager at FCI Fort Dix, Plaintiff was transferred to FCI
Allenwood,
an
institution
which
facilitates
ICE
hearings
for
inmates. (Declaration of Mary McCollum, ECF No. 10-1.) Plaintiff may
seek to have the ICE detainer lifted in an IHP hearing. (Fed. Defs’
Letter, ECF No. 10, citing BOP Program Statement 5111.04.) The
parties have not informed this Court of the result of Plaintiff’s
IHP hearing.
Plaintiff’s statutory claim is not ripe for judicial review.
See Porter-Bey, 456 F. App’x at 111 (affirming district court’s
dismissal of habeas petition as not ripe for judicial review because
no final decision on RRC placement had been made in his case); see
Presbytery of New Jersey of Orthodox Presbyterian Church, 40 F.3d
1454 (3d Cir. 1994) (“Although the party seeking review need not have
suffered a completed harm to establish adversity of interest … it
is necessary that there be a substantial threat of real harm and that
the threat must remain real and immediate throughout the course of
the litigation” (quoting Salvation Army v. Department of Community
Affairs, 919 F.2d 183, 192 (3d Cir. 1990) (internal quotations
omitted). If, at any time, a court determines that it lacks
jurisdiction, the court must dismiss the action. Fed. R. of Civ. P.
12(h)(3).
VI.
CONCLUSION
For the reasons discussed above, the Court dismisses the
complaint without prejudice for lack of jurisdiction because it is
not ripe.
An appropriate Order follows.
Date: May 24, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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