Coston v. US Attorney General et al
ORDER denying 28 Motion to Appoint Counsel and ORDER DISMISSING CASE: For the reasons set forth in the attached Memorandum and Order, Petitioner's request for relief under 28 U.S.C. § 2241 and his Motion for Appointment of Counsel are bo th denied as moot. The Clerk of Court is directed to enter judgment terminating this action. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 3/8/2018. (Cuevas Ingram, Joanna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RASHOD D. COSTON,
NOT FOT PUBLICATION
MEMORANDUM & ORDER
-againstU.S. ATTORNEY GENERAL, FEDERAL BUREAU
OF PRISONS, COMMUNITY CORRECTIONS
CENTER (BRONX RRC),
PAMELA K. CHEN, United States District Judge:1
In August 2013, Rashod D. Coston (“Petitioner” or “Coston”))—then an inmate at the
Metropolitan Detention Center in Brooklyn (“MDC”)—commenced this action (the “Petition”) by
filing a petition against the U.S. Attorney General, Federal Bureau of Prisons (“BOP”), and the
Community Corrections Center (Bronx RRC) (collectively, “Respondents”), pursuant to 28 U.S.C.
§§ 2241, 1361 and Federal Rules of Civil Procedure 65(a)(2) and (b). (Dkt. 1.) The Petition is
dismissed for the reasons set forth below.
On February 24, 2012, Petitioner was indicted for “fraudulent use of access devices[,]” in
violation of 18 U.S.C. §§ 1029(a)(2) and (c)(1)(A)(i). (Judgment in a Criminal Case, 5:11-CR-272
(NAM), Dkt. 29.) After pleading guilty to the offense (id.), on November 6, 2012, Petitioner was
On behalf of the district judge previously assigned to this case, the late Honorable Sandra
L. Townes, the Court acknowledges the assistance of Fordham University law student, Yeilee
Woo, in the drafting of this Memorandum and Order. This case was re-assigned to the undersigned
on February 20, 2018.
sentenced to 27 months’ imprisonment, to be followed by a three-year term of supervised release.
(Id. at Imprisonment and Supervised Release.)
On May 28, 2013, Petitioner was transferred from the federal correctional facility in
Loretto, Pennsylvania to complete his term of imprisonment at Defendant the Bronx Community
Reentry Center (“Bronx RRC”). On June 22, 2013, the Bronx RRC charged Petitioner with
violating its rules.
According to the Bronx RRC, Petitioner “[v]iolat[ed] a condition of a
community program[,] . . . Code 309[.]”2 (Incident Report, 2460653 at 1, Ex. E, Dkt. 15-5.) Thus,
about three hours after Petitioner returned to the Bronx RRC, the institution notified him that he
was being charged with a Code 309 violation for breaking curfew. The RRC also charged
Petitioner with violating “Code 104”3 for “[p]ossession, manufacture, or introduction of a gun,
firearm, weapon, sharpened instrument, knife, dangerous chemical, explosive, ammunition, or any
instrument used as a weapon.” (Incident Report, 2463277 at 1, Ex. G, Dkt. 15-7.)
On June 27, 2013, Petitioner was transferred out of the RRC. (“Inmate History AdmissionRelease, Ex. B.) On July 3, 2013, the BOP wrote to Petitioner stating that a copy of the Discipline
Committee’s “Sanction Notice” was enclosed, and notifying Petitioner of the timeframe within
which to submit an Administrative Remedy complaint to the Northeast Regional Office.4
BOP’s regulations set forth a list of “[p]rohibited acts” by inmates and “available sanctions”
in 28 C.F.R.§ 541.3, Table 1. One such prohibited act, listed under Code 309, is “[v]iolating a
condition of a community program.” Id.
Listed as a prohibited act in 28 C.F.R. § 541.3, Table 1 (2011).
BOP’s Northeast Regional Office covers the institutions in New York State.
https://www.bop.gov/locations/regional_offices/nero/ (last visited March 8, 2018). (Ex. H, Dkt.
PETITIONER’S APPEALS OF THE SANCTIONS IMPOSED
On July 12, 2013, Petitioner appealed the sanctions for his Code 104 violation to the BOP’s
Northeast Regional Office. (Decl. of Donna Broome, ¶ 11, Ex. F, Dkt. 15-6.)5 The appeal was
rejected the same day “because [Petitioner] had included too many continuation pages with his
appeal.” (Id.; Ex. K, Dkt. 15-11.) The Northeast Regional Office informed Petitioner that he could
resubmit his appeals package within ten days after correcting this error. (Ex. F ¶ 11.) On July 30,
2013, Petitioner resubmitted his appeal, but the Northeast Regional Office rejected it again, the
next day, for “us[ing] the back of his continuation page.” (Ex. F ¶ 12; Ex. K.) Again, he was
instructed that he could resubmit his appeal after correcting this error. (Ex. F ¶ 12.) Petitioner,
however, did not resubmit his appeal to the Northeast Regional Office; nor did he pursue any
further appeal of his sanctions for the Code 104 violation. (Id. at ¶ 13.)
On July 16, 2013, Petitioner appealed his sanctions for the Code 309 violation, but it was
rejected because “CPG ONE RSR[.]” (Ex. K.) Respondents have not informed the Court of the
meaning of these acronyms. Broome states in her Declaration that Petitioner submitted this appeal
on August 2, 2013. (Ex. F ¶ 8.) Nonetheless, the Northeast Regional Office rejected this appeal
on August 30, 2013. (Id.) Petitioner filed another appeal with the Northeast Regional Office the
same day, which was denied on September 30, 2013, on the grounds that his appeal had already
been denied on August 30th. (Id. at ¶ 9.) Petitioner did not appeal the Northeast Regional Office’s
decision on the Code 309 violation to the Warden or the General Counsel’s Office. (Id. at ¶ 10.)
On September 27, 2013, Petitioner appealed to the BOP’s Warden seeking to restore
“forfeited statutory good time” of 20 days. (Ex. I, Dkt. 15-9.) On October 21, 2013, the Warden
Broome is “a Legal Assistant employed by the United States Department of Justice,
Federal Bureau of Prisons, Northeast Regional Office, Philadelphia, Pennsylvania.” (Ex. F ¶ 1.)
rejected denied Petitioner’s request and informed him that he could appeal the Warden’s decision
to the Northeast Regional Office. (Ex. F ¶ 13; Ex. J, Dkt. 15-10.) Petitioner did not do so.
PETITIONER’S § 2241 PETITIONS
Petitioner began this lawsuit on July 29, 2013, by submitting a three-page pro se “Emergency
Petition Ex Parte Application”, also titled, “Petition for Habeas Corpus (28 U.S.C. § 2241) (28
U.S.C. § 1361) (Fed. R. Civ. P. 65(a)(2) & (b)” (the “First Petition”), requesting that this Court
order the BOP to discharge him from the MDC and admit him “to a community corrections center
to facilitate successful reintegration and to restore his earned good conduct time credit.” (First
Pet. ¶ 3, Dkt. 1.) Petitioner argued that he was being unlawfully detained by the BOP that he had
not been afforded due process during the Bronx RRC’s disciplinary proceedings regarding the
code violations, that his more “formal 2241 Petition” had been seized by BOP Corrections Officer
N. Mahedeo, and that his earned good conduct time credit was being “unduly subjected to
forfeiture.” (Id. at ¶¶ 1-4.) Petitioner also argued that the Bronx RRC had “concocted” the
“infractions” against him and “inflicted verbal and physical abuse”, and that the “due process
proceedings” had been “deficient and inadequate. . . . ” (Id. at ¶ 3.) Petitioner also requested an
“ex parte Filing . . . due to the sensitivity of the assertions and issues raised in this formally drafted
2241 Petition.” (Id. at ¶ 8).
On August 1, 2013, Petitioner submitted another three-page document titled, “Petition for
Writ of Habeas Corpus 28 USC 2241[,] Appended Filing Notice of Content Apprisal” (the “Second
Petition”), submitting the “essential elements and pleadings necessary to sustain a claim for
immediate relief” that were allegedly missing from the First Petition. (Second Pet. ¶ 1, Dkt. 2.)
On August 7, 2013, the Court notified Petitioner that he had failed to pay the filing fee and that,
alternatively, he could proceed in forma pauperis. (Dkt. 3.) The Court subsequently granted
Petitioner in forma pauperis status and directed Respondents to respond to Petitioner’s habeas
application within 20 days. (Dkt. 9.)
By letter dated October 4, 2013 and filed October 21, 2013, Petitioner advised the Court
that he had made “an institutional BOP administrative remedy filing” to recover his legal materials
that had been “withheld by BOP officials . . . stemming from multiple institutional transfers.”
(Dkt. 10.) He also stated that the relief he sought was “to be released from federal custody on his
original release date of October 24, 2013—a date that was pushed back due to the rescission of
good conduct time unlawfully and unduly disallowed stemming from a series of constitutional,
statutory, and substantive and civil rights violations” that had allegedly occurred at the Bronx
RRC, where Petitioner claimed he had been subjected to “kangaroo court proceedings” for
“fabricated” charges and infractions. (Id.) On October 24, 2013, Petitioner submitted another
filing consisting of: (1) a two-page document titled, “Appending, nunc pro tunc, formal pleading
and petition pursuant to 28 U.S.C. 2241 (ii) earliest review possible”; (2) an eight-page document
titled, “Affidavit in support of motion for relief pursuant to 28 U.S.C. 2241 (Petition for writ of
habeas corpus) and 28 U.S.C. 2243”; and (3) a 92-page document titled, “Petition for writ of habeas
corpus (28 U.S.C. 2241) (‘sensitive’)(‘emergency petition’)(‘ex parte’-due to sensitivity of
contents)” (“Habeas Mot.”), (collectively, the “Third Petition”). (Third Pet. at Habeas Mot., Dkt.
18, Statement of Facts ¶ 2, pp. 12-3 of 92.6)
In his Third Petition, Coston also claimed that his detention violates his due process
rights under the Fifth Amendment “by depriving Petitioner of his right to pursue the use of
witness testimony. . . .” (Id. at ¶ 4.) He alleged violations of 42 U.S.C. § 2000d and “Title VI”
of the Civil Rights Act, based on sexual orientation discrimination. (Id. at ¶ 4.a., at p. 3 of 92.)
Petitioner numbered his Third Petition “(p. __ of 92)” and so on. The Court uses
Petitioner’s pagination of the Third Petition.
Petitioner also clarified that he was “not inclined to seek criminal or civil relief in this matter-as
such issues may appropriately be cognizable under Bivens v. Six Unknown . . . [,]” but rather
sought only habeas relief to restore his good conduct time such that he [could] be released on his
original release date of October 24, 2013. (Id. at ¶ 5, p. 26 of 92, referencing Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that
constitutional violations by officers acting under color of federal law give rise to a federal cause
of action for damages).) Petitioner also argued that “5 U.S.C.S. 702” provides that anyone
wronged by “agency action” is entitled to judicial relief, and, thus, he was seeking habeas relief.
(Id. at ¶ b, at p. 4 of 92.)
On November 5, 2013, Petitioner wrote to the Court enclosing notarized pages that he had
previously submitted as part of his Third Petition. (Dkt. 12.) On November 26, 2013, the Court
issued a docket order indicating that it was construing the Third Petition as an amended petition
and Petitioner as seeking that it be filed under seal, which the Court granted. (Order, Dkt. 14.)
On November 29, 2013, Respondents filed their opposition to the First and Second Petition.
(Dkt. 15.) Respondents argued that the Court should deny Petitioner the relief that he sought
because he had failed to exhaust his administrative remedies before filing his petitions in court,
and that, in any event, his petitions were without merit. (Id.) On December 13, 2013, Respondents
filed their response to Petitioner’s Third Petition, reiterating their previous arguments. (Dkt. 23.)
Respondents also noted that “after detailing the incidents of alleged misconduct, petitioner states
that he is ‘not inclined to seek criminal or civil relief in this matter’. . . . Given the serious nature
of the allegations, however, the government has notified the BOP legal department regarding the
allegations advanced by Petitioner.” (Id. at 4.)
PETITIONER’S RELEASE FROM FEDERAL CUSTODY
(https://www.bop.gov/inmateloc/ (last visited March 8, 2018)). Having completed his term of
incarceration with no term of supervised release to follow, Petitioner’s sentence has fully expired.
MOTION SEEKING APPOINTMENT OF COUNSEL
On April 28, 2017, Petitioner submitted a letter motion to the Court seeking appointment
of counsel and stating that “his surrebuttal filing” of November 2013 was missing from the docket.
(Dkt. 28.) On May 9, 2017, the Court responded, in part, to Petitioner’s letter by asking Petitioner
to send a copy of his “surrebuttal” to the Court. The Court has not yet received that document.
“A writ of habeas corpus under § 2241 is available to a federal prisoner who does not
challenge the legality of his sentence, but challenges instead its execution subsequent to his
conviction.” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (citing
Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997) and Kingsley v. Bureau of Prisons,
937 F.2d 26, 30 n. 5 (2d Cir. 1991)). A prisoner in federal custody or awaiting trial for a violation
of federal law may seek a writ of habeas corpus. 28 U.S.C. § 2241(c)(1)-(3).
PETITIONER’S § 2241 PETITION IS MOOT AND MUST BE DISMISSED
“Article III, §2, of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies,’ which restricts the authority of federal courts to resolving ‘the legal rights of
litigants in actual controversies’. . . . ” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523,
1528 (2013) (quoting Valley Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 471 (1982) (internal citation omitted)). “In order to invoke
federal-court jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable
interest, or personal stake, in the outcome of the action. . . . This requirement ensures that the
Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and
concrete disputes, the resolutions of which have direct consequences on the parties involved.”
Genesis Healthcare Corp., 133 S. Ct. at 1528 (internal quotation marks and citations omitted).
Where a prisoner challenges the conditions of confinement and seeks injunctive relief, the
claim becomes moot when the prisoner is transferred out of the facility in question. Thompson v.
Choinski, 525 F.3d 205, 209 (2d Cir. 2008). This is because the prisoner loses personal stake in
the claim and the Court cannot provide any injunctive relief to the prisoner. Thus, where a prisoner
is no longer in the facility, the Court lacks subject-matter jurisdiction over his conditions of
confinement claim. See id. (finding “moot” § 2241 claims about prison conditions, i.e., not being
provided kosher food or access to the prison library, once petitioner was transferred out of the
facility); Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (“Salahuddin is presently
incarcerated in Oneida Correctional Facility, which is not one of the prison facilities in which the
actions complained of here occurred, and therefore we hold moot all injunctive and declaratory
claims against [the relevant] defendants”).
Similarly here, although Petitioner was in federal custody, first at the MDC and then at the
Bronx RRC when he filed his § 2241 petitions in the instant case, he has since been released from
federal custody and his sentence has fully expired. Accordingly, because the Court can no longer
provide him with the various forms of injunctive relief that he sought, his habeas petition is moot
and must be dismissed for lack of subject-matter jurisdiction.
PETITIONER’S MOTION SEEKING APPOINTMENT OF COUNSEL IS MOOT
AND MUST BE DISMISSED
Civil litigants, unlike criminal defendants, do not enjoy a Sixth Amendment right to
representation, see In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984), and the Court
cannot compel an attorney to take a civil case without a fee. Mallard v. United States District
Court, 490 U.S. 296 (1989). The Court need not analyze whether Petitioner should nonetheless
be appointed counsel in this matter, because, as discussed, his claims are moot and his petition is
being dismissed in its entirety. See Thompson, 525 F.3d at 209. Thus, Petitioner has no need for
counsel, and his request for court-appointed counsel is denied.
For the reasons set forth above, Petitioner’s request for relief under 28 U.S.C. § 2241 and
his motion for appointment of counsel are both denied as moot. The Clerk of Court is directed to
enter judgment terminating this action. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good faith and therefore in forma pauperis status
is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: March 8, 2018
Brooklyn, New York
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